5,483
edits
Difference between revisions of "Wills Variation Claims (16:VII)"
Jump to navigation
Jump to search
Wills Variation Claims (16:VII) (view source)
Revision as of 18:02, 27 June 2016
, 18:02, 27 June 2016→A. Application Under the Act
Desy Wahyuni (talk | contribs) (Created page with "{{LSLAP Manual TOC|expanded = wills}} == 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-make...") |
Desy Wahyuni (talk | contribs) |
||
| Line 20: | Line 20: | ||
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. | |||
'''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. | |||