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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 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''.  
''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 '''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).


When determining what constitutes adequate provision in a will, courts have considered the following:
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;  
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*the size of the will-maker’s estate.  
*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.
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 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:  
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:
*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.  
*'''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.  


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:
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:
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*Competing claimant and other beneficiaries"
*Competing claimant 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.”
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.”


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'''.
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.  
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 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''.  
:'''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''.  


== B. Definition of Spouse in WESA ==
== B. Definition of Spouse in WESA ==
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(2) Two persons cease being spouses of each other for the purposes of this Act if,
(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
(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.
(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.


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== C. Exclusion of Potential Beneficiaries ==
== 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.'''
'''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 may consider them. Therefore, the will-maker is not assured of success in their 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'''.


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 their 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.






{{REVIEWED LSLAP | date= June 4, 2019}}
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