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

{{REVIEWED LSLAP | date= August 4, 2020}}

*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;  

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

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

See ''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.  

The Supreme Court of Canada’s decision in ''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:

In the more recent case of ''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:

:'''NOTE:''' In a decision of the BC Supreme Court, ''Ward v Ward Estate'', 2006 BCSC 448 and more recently in ''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''.  

(1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(a) they were married to each other, or

(b) they had lived with each other in a marriage-like relationship for at least 2 years.

(2) Two persons cease being spouses of each other for the purposes of this Act if,

(a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [''Property Division''] of the ''Family Law Act'', to arise, or

(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.

(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,

(a) they begin to live together again and the primary purpose for doing so is to reconcile, and

(b) they continue to live together for one or more periods, totalling at least 90 days.

(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.

:'''NOTE:''' See ''Gosbjorn v Hadley'' 2008 BCSC 219 for a list of factors used by the courts to determine if there is a marriage-like relationship. More recently, see the discussion in ''Connor Estate'', 2016 BCSC 1934.

:'''NOTE:''' In ''BH v JH'', 2015 BCSC 1551, the BC Supreme Court varied the husband’s will so that the wife, who was separated from but who has not divorced the husband, was entitled to part of the husband’s estate. This significantly deviated from what the wife would have received if they had divorced immediately before the husband’s death.