Difference between revisions of "Wills Variation Claims (16:VII)"

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When determining what constitutes adequate provision in a will, courts have considered the following:

*Actual need, which varies with age and dependency;

* Actual need, which varies with age and dependency;

*Justifiable expectation based upon a dependency upon the will-maker or an actual contribution made by the claimant to the will-maker’s estate;

* Justifiable expectation based upon a dependency upon the will-maker or an actual contribution made by the claimant to the will-maker’s estate;

*Will-maker’s intention and reasons for making their will; and

* Will-maker’s intention and reasons for making their will; and

*The size of the will-maker’s estate.

* The size of the will-maker’s estate.

See ''[https://www.canlii.org/en/bc/bcca/doc/1976/1976canlii237/1976canlii237.html?autocompleteStr=Lukie%20v%20Helgason%20%26%20Lukie%2C%20(1976)%2026%20RFL%20164%20&autocompletePos=1 Lukie v Helgason & Lukie]'', (1976) 26 RFL 164 (questioned) and ''Newstead v Newstead Estate'' (1996) 11 ETR (2d) 236 (BCSC) for detailed discussions of the above factors.

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The Supreme Court of Canada’s decision in ''[https://www.canlii.org/en/ca/scc/doc/1994/1994canlii51/1994canlii51.html?autocompleteStr=Tataryn%20v%20Tataryn%20Estate%2C%20(1994)%2093%20BCLR%20(2d)%20145&autocompletePos=1 Tataryn v Tataryn Estate]'', (1994) 93 BCLR (2d) 145 provides a different focus for the determination of a wills variation claim. This is the leading authority in British Columbia on wills variation. The court considered the following factors in deciding what constitutes an “adequate, just, and equitable” provision in a will:

:a)'''The will-maker’s legal obligations''' – maintenance and property allocations which the law would support during the will-maker’s lifetime; and

:a) '''The will-maker’s legal obligations''' – maintenance and property allocations which the law would support during the will-maker’s lifetime; and

:b)'''The will-maker’s moral obligations''' – society’s reasonable expectations, based on community standards, of what a judicious person would do in the circumstances.

:b) '''The will-maker’s moral obligations''' – society’s reasonable expectations, based on community standards, of what a judicious person would do in the circumstances.

In the more recent case of ''[https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1274/2012bcsc1274.html?autocompleteStr=Dunsdon%20v%20Dunsdon%2C%20(2012)%20BCSC%201274%20&autocompletePos=1 Dunsdon v Dunsdon]'' (2012) BCSC 1274 (CanLII) [''Dunsdon''], the court provides a list of overlapping considerations that "have been accepted as informing the existence and strength of a testator's moral duty to independent children:

*Relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other

* Relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other

*Size of the estate

* Size of the estate

*Contributions by the claimant

* Contributions by the claimant

*Reasonably held expectations of the claimant

* Reasonably held expectations of the claimant

*Standard of living of the testator and claimant

* Standard of living of the testator and claimant

*Gifts and benefits made by the testator outside the will

* Gifts and benefits made by the testator outside the will

*Testator's reasons for disinheriting

* Testator's reasons for disinheriting

*Financial need and other personal circumstances, including disability of the claimant

* Financial need and other personal circumstances, including disability of the claimant

*Competing claimants and other beneficiaries"

* Competing claimants and other beneficiaries"

As the court notes in ''Dunsdon'', “[t]he concept of adequate provisions is a flexible notion and is highly dependent upon the individual circumstances of the case. The adequacy of a provision is measured by asking whether a testator has acted as a judicious parent or spouse, using an objective standard informed by current legal and moral norms. The considerations to be weighed in determining whether a testator has made adequate provisions are also relevant to the determination of what would constitute adequate, just and equitable provisions in the particular circumstances.”

Line 39:

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 and more recently in ''[https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc89/2018bcsc89.html?autocompleteStr=Lamperstorfer%20v.%20Plett%2C%202018%20BCSC%2089&autocompletePos=1 Lamperstorfer v. Plett]'', 2018 BCSC 89, it was held that a signed pre-nuptial 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''.

== B. Definition of Spouse in WESA ==

@@ Line 9: / Line 9: @@
 When determining what constitutes adequate provision in a will, courts have considered the following:
-*Actual need, which varies with age and dependency;
+* Actual need, which varies with age and dependency;
-*Justifiable expectation based upon a dependency upon the will-maker or an actual contribution made by the claimant to the will-maker’s estate;
+* Justifiable expectation based upon a dependency upon the will-maker or an actual contribution made by the claimant to the will-maker’s estate;
-*Will-maker’s intention and reasons for making their will; and
+* Will-maker’s intention and reasons for making their will; and
-*The size of the will-maker’s estate.
+* The size of the will-maker’s estate.
 See ''[https://www.canlii.org/en/bc/bcca/doc/1976/1976canlii237/1976canlii237.html?autocompleteStr=Lukie%20v%20Helgason%20%26%20Lukie%2C%20(1976)%2026%20RFL%20164%20&autocompletePos=1 Lukie v Helgason & Lukie]'', (1976) 26 RFL 164 (questioned) and ''Newstead v Newstead Estate'' (1996) 11 ETR (2d) 236 (BCSC) for detailed discussions of the above factors.
@@ Line 18: / Line 18: @@
 The Supreme Court of Canada’s decision in ''[https://www.canlii.org/en/ca/scc/doc/1994/1994canlii51/1994canlii51.html?autocompleteStr=Tataryn%20v%20Tataryn%20Estate%2C%20(1994)%2093%20BCLR%20(2d)%20145&autocompletePos=1 Tataryn v Tataryn Estate]'', (1994) 93 BCLR (2d) 145 provides a different focus for the determination of a wills variation claim. This is the leading authority in British Columbia on wills variation. The court considered the following factors in deciding what constitutes an “adequate, just, and equitable” provision in a will:
-:a)'''The will-maker’s legal obligations''' – maintenance and property allocations which the law would support during the will-maker’s lifetime; and
+:a) '''The will-maker’s legal obligations''' – maintenance and property allocations which the law would support during the will-maker’s lifetime; and
-:b)'''The will-maker’s moral obligations''' – society’s reasonable expectations, based on community standards, of what a judicious person would do in the circumstances.
+:b) '''The will-maker’s moral obligations''' – society’s reasonable expectations, based on community standards, of what a judicious person would do in the circumstances.
 In the more recent case of ''[https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1274/2012bcsc1274.html?autocompleteStr=Dunsdon%20v%20Dunsdon%2C%20(2012)%20BCSC%201274%20&autocompletePos=1 Dunsdon v Dunsdon]'' (2012) BCSC 1274 (CanLII) [''Dunsdon''], the court provides a list of overlapping considerations that "have been accepted as informing the existence and strength of a testator's moral duty to independent children:
-*Relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other
+* Relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other
-*Size of the estate
+* Size of the estate
-*Contributions by the claimant
+* Contributions by the claimant
-*Reasonably held expectations of the claimant
+* Reasonably held expectations of the claimant
-*Standard of living of the testator and claimant
+* Standard of living of the testator and claimant
-*Gifts and benefits made by the testator outside the will
+* Gifts and benefits made by the testator outside the will
-*Testator's reasons for disinheriting
+* Testator's reasons for disinheriting
-*Financial need and other personal circumstances, including disability of the claimant
+* Financial need and other personal circumstances, including disability of the claimant
-*Competing claimants and other beneficiaries"
+* Competing claimants and other beneficiaries"
 As the court notes in ''Dunsdon'', “[t]he concept of adequate provisions is a flexible notion and is highly dependent upon the individual circumstances of the case. The adequacy of a provision is measured by asking whether a testator has acted as a judicious parent or spouse, using an objective standard informed by current legal and moral norms. The considerations to be weighed in determining whether a testator has made adequate provisions are also relevant to the determination of what would constitute adequate, just and equitable provisions in the particular circumstances.”
@@ Line 39: / Line 39: @@
 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 and more recently in ''[https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc89/2018bcsc89.html?autocompleteStr=Lamperstorfer%20v.%20Plett%2C%202018%20BCSC%2089&autocompletePos=1 Lamperstorfer v. Plett]'', 2018 BCSC 89, it was held that a signed pre-nuptial 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''.
 == B. Definition of Spouse in WESA ==

Difference between revisions of "Wills Variation Claims (16:VII)"

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