Wills Variation Claims (16:VII)

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. The limitation period for commencing an action to vary a will is 180 days from the grant of probate, per s 61(1)(a).

A wills variation action is commenced by a Writ of Summons and Statement of Claim. The ground of an action is 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).

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

• 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 his or her 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.

However, the Supreme Court of Canada decision in Tataryn v Tataryn Estate (1994), 93 BCLR (2d) 145 provides a different focus for the determination of s 2 claims. The court considered the following factors in deciding what constitutes an “adequate, just, and equitable” provision in a will:

• the Will-maker’s legal obligations – maintenance and property allocations which the law would support during the Will-maker’s lifetime; and
• the Will-maker’s moral obligations – society’s reasonable expectations, based on community standards, of what a judicious person would do in the circumstances.

Where the size of the estate allows, surviving spouses and children are entitled to an equitable share under WESA even in the absence of need.

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.

B. Definition of Spouse in WESA

The definition of spouse in s 2 of WESA reads:

(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, including a marriage-like relationship between persons of the same gender, 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,

(i) they live separate and apart for at least 2 years with one or both of them having the intention, formed before or during that time, to live separate and apart permanently, or

(ii) an event occurs that causes an interest in family assets, as defined in Part 5 [Matrimonial Property] of the Family Relations Act, to arise, or

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

(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.

C. Exclusion of Potential Beneficiaries

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. 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.

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.