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

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Wills Variation Claims (16:VII) (view source)

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{{REVIEWED LSLAP | date= July 8, 2022}}
{{REVIEWED LSLAP | date= June 30, 2023}}
{{LSLAP Manual TOC|expanded = wills}}
{{LSLAP Manual TOC|expanded = wills}}


== 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'''. See '''VIII.B. Separated Spouses''' for more information on when the spousal relationship ceases for the purposes of WESA. 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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: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:
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
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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 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''.
:'''NOTE:''' In a decision of the BC Supreme Court, ''[https://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc448/2006bcsc448.html Ward v Ward Estate]'', 2006 BCSC 448 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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:(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.
:(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 ''[https://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc219/2008bcsc219.html?autocompleteStr=Gosbjorn%20v%20Hadley%2C%202008%20BCSC%20219&autocompletePos=1 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 ''[https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1934/2016bcsc1934.html?autocompleteStr=Connor%20Estate%2C%202016%20BCSC%201934&autocompletePos=1 Connor Estate]'', 2016 BCSC 1934.
:'''NOTE:''' See ''[https://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc219/2008bcsc219.html?autocompleteStr=Gosbjorn%20v%20Hadley%2C%202008%20BCSC%20219&autocompletePos=1 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 ''[https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1934/2016bcsc1934.html?autocompleteStr=Connor%20Estate%2C%202016%20BCSC%201934&autocompletePos=1 Connor Estate]'', 2017 BCSC 978.


:'''NOTE:''' In ''[https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc325/2021bcsc325.html Boughton v Widner Estate]'', 2021 BCSC 325, the deceased had both a legal wife as well as a common law partner at the time of his death. The court confirmed that it is possible to have two spouses who concurrently meet the definition of a spouse under ''WESA'' section 2. The deceased’s estate was split equally between the two spouses.
:'''NOTE:''' In ''[https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc325/2021bcsc325.html Boughton v Widner Estate]'', 2021 BCSC 325, the deceased had both a legal wife as well as a common law partner at the time of his death. The court confirmed that it is possible to have two spouses who concurrently meet the definition of a spouse under ''WESA'' section 2. The deceased’s estate was split equally between the two spouses.
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