How Wills Variation Claims Differ for Children and Spouses

When a will appears to treat a spouse or child unfairly, the courts in British Columbia allow certain individuals to challenge it through a wills variation claim; however, the rights and considerations for spouses and children can differ significantly in these cases. At Linley Welwood, we understand how emotionally and legally complex these situations can be, especially for families who are already dealing with the stress of loss. That is why we have outlined how wills variation claims differ for children and spouses under British Columbian law to help you better understand your rights.

Learn about some of the most common misconceptions about will variation.

What Should You Know About Wills Variation Claims in British Columbia?

Under the Wills, Estates and Succession Act (WESA) of British Columbia, spouses and children (both biological and adopted) are permitted to apply to vary a will if they believe it does not make adequate provision for their proper maintenance and support; however, it is important to keep in mind that the courts evaluate these claims differently based on the applicant’s relationship to the deceased. Understanding the implications of wills variation is essential for anyone considering such a claim, as outcomes can vary significantly depending on individual circumstances.

Spousal Claims

Spouses, whether married or in a marriage-like (common-law) relationship, often have strong standing when challenging a will. Courts consider both legal and moral obligations the deceased had toward their spouse. Legal obligations reflect the responsibilities that would have existed if the relationship ended before death (e.g., through separation), while moral obligations focus on what a fair and reasonable spouse would have provided.

Courts also assess the financial dependency of the spouse, the length of the relationship, contributions to shared assets, and the overall fairness of the will’s distribution.

Claims by Children

Children’s claims are evaluated largely on moral obligation, particularly when they are financially independent adults. While minor or dependent children often receive stronger consideration, adult children must usually show that the deceased parent failed to meet a moral duty to provide for them. Factors include the child’s financial need, estrangement or misconduct, and the size of the estate. The impact of family dynamics on wills variation can be significant in these cases, as strained relationships, favouritism, or past conflicts may influence how the court views the fairness of the will and the parent’s moral obligations.

Key Differences to Consider

While both spouses and children can apply to vary a will, spouses generally have a stronger claim due to both legal and moral obligations. Children’s claims, especially those of financially independent adults, are more complex and rely heavily on demonstrating moral unfairness in the distribution.

At Linley Welwood, our experienced lawyers can help you understand your rights and options under British Columbia estate law. Get in touch with us today to learn more about making a wills variation claim or to speak with a lawyer about your specific situation.