Difference between revisions of "Wills Variation Claims (16:VII)"
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== A. Application Under the Act == | == A. Application Under the Act == | ||
''WESA'' gives the court the power to vary a will. '''Only the spouse of the will-maker or the will-maker’s children can commence an action to vary a will.''' However, it should be noted that in the situation of | ''WESA'' gives the court the power to vary a will. '''Only the spouse of the will-maker or the will-maker’s children can commence an action to vary a will.''' However, it should be noted that in the situation of common law spouses, one spouse can unilaterally terminate a relationship and thereby remove the will from the variation provisions in ''WESA''. On the other hand, for married spouses, the spousal relationship can only be terminated by divorce. Please see [[Introduction to Family Law (3:I) |Chapter Three: Family Law]] for more information regarding divorces. The '''limitation period''' for commencing an action to vary a will is '''180 days''' from the grant of probate, per section 61(1)(a) of ''WESA''. | ||
A wills variation action is commenced by a claim that the will-maker failed to “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children” (''WESA'', s 60). | A wills variation action is commenced by a claim that the will-maker failed to “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children” (''WESA'', s 60). | ||
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The court may consider the applicant’s character or conduct, and variation may be refused on this basis (''WESA'', s 63(b)). If the estate is large and the spouse or children were not mentioned in the will, or they think they were inadequately or unfairly provided for, they should consult a lawyer. LSLAP cannot assist clients with wills variation claims. | The court may consider the applicant’s character or conduct, and variation may be refused on this basis (''WESA'', s 63(b)). If the estate is large and the spouse or children were not mentioned in the will, or they think they were inadequately or unfairly provided for, they should consult a lawyer. LSLAP cannot assist clients with wills variation claims. | ||
:'''NOTE:''' In a decision of the BC Supreme Court, ''Ward v Ward Estate'', 2006 BCSC 448, it was held that a marriage agreement that purported to bar claims under the ''Wills Variation Act'' was not determinative of the issue. | :'''NOTE:''' In a decision of the BC Supreme Court, ''Ward v Ward Estate'', 2006 BCSC 448 and it was more recently in Kuzyk v Czajkowski, 2016 BCSC 1109, it was held that a signed pre-nupital agreement where both parties gave up any right or interest to the other's estate was not determinative in a claim under the ''Wills Variation Act''. | ||
it was held that a marriage agreement that purported to bar claims under the ''Wills Variation Act'' was not determinative of the issue. | |||
== B. Definition of Spouse in WESA == | == B. Definition of Spouse in WESA == | ||
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'''A will-maker who wishes to exclude a spouse or child should state precisely why the person is being “disinherited,” or why they are less than “adequately” provided for. LSLAP’s policy is not to draft a will where the will-maker wishes to exclude a spouse or child, or unevenly divide the assets between children. Such clients should be referred to a private lawyer, unless the supervising lawyer gives approval.''' | '''A will-maker who wishes to exclude a spouse or child should state precisely why the person is being “disinherited,” or why they are less than “adequately” provided for. LSLAP’s policy is not to draft a will where the will-maker wishes to exclude a spouse or child, or unevenly divide the assets between children. Such clients should be referred to a private lawyer, unless the supervising lawyer gives approval.''' | ||
As per section 60 of WESA, the court is not bound by the will-maker’s decision and reasons, but will consider them. Therefore, the will-maker is not assured of success in his or her attempt to exclude or less than adequately provide for a spouse or child. For more detail, see above | As per section 60 of WESA, the court is not bound by the will-maker’s decision and reasons, but will consider them. Therefore, the will-maker is not assured of success in his or her attempt to exclude or less than adequately provide for a spouse or child. For more detail, see above Section VI.A: Application Under the Act. | ||
The chances of the will-maker’s will being upheld will be greater if the will-maker provides '''reasonable and rational reasons for the exclusion'''. For example, where the will-maker has already given the person substantial benefits during her or his lifetime, where the reason is based upon the person’s character, or on the relationship between the will-maker and the potential claimant, the court will be more likely to uphold the will-maker’s wishes. | The chances of the will-maker’s will being upheld will be greater if the will-maker provides '''reasonable and rational reasons for the exclusion'''. For example, where the will-maker has already given the person substantial benefits during her or his lifetime, where the reason is based upon the person’s character, or on the relationship between the will-maker and the potential claimant, the court will be more likely to uphold the will-maker’s wishes. | ||