Using Trusts to Protect Against Wills Variation Claims

Preparing an estate plan that uses trusts to protect against wills variation claims means taking proactive steps to secure your legacy and reduce risk. At Linley Welwood, our lawyers understand how complex estate-planning tools can work alongside the risk of a claim under the Wills, Estates and Succession Act (WESA) (British Columbia). That is why we have prepared this overview of using trusts to protect against wills variation claims.

Find out how wills variation claims differ for children and spouses.

How Trusts Help Mitigate the Risks of Wills Variation Claims

Before diving into specific trust strategies, it is helpful to understand how wills variation claims arise in British Columbia. Under section 60 of the Wills, Estates and Succession Act (WESA), a spouse or child can ask the court to change a will if they feel the will does not provide them with fair support; however, the court can only change what is actually in the will. Anything that is not part of the will is harder for someone to challenge. Because of this, setting up a well-planned trust during your lifetime can help keep certain assets outside the will, reducing the chance of a wills variation claim.

What Types of Trusts May Be Useful?

One approach is to set up an inter vivos trust (a trust created while the person is still alive) or to use a spousal or family trust to hold certain assets outside the will. When assets are not part of the estate, the risk of a will variation claim will be automatically reduced; however, this type of planning must be done carefully and with proper legal guidance. Transfers into a trust can still be reviewed under other laws, such as the Fraudulent Conveyances Act, if it appears the purpose was to mislead or avoid a legitimate claim.

What Pitfalls Should You Avoid?

Even when assets are placed in a trust, the court will still look at the overall circumstances, including whether the will-maker had an obligation to provide for certain parties, and whether the arrangement was reasonable. Trust planning cannot guarantee full protection from challenges related to wills variation in British Columbia; rather, it assists with risk management. Clear documentation of intent, proper legal advice, and open communication with family remain important.

Why Engage a Law Firm for This Work?

Trusts and risk management of wills variation claims require both technical and strategic legal expertise. Your lawyer will assess the circumstances and the risk of someone filing a wills variation claim. They will also assess the nature and value of assets, and help draft trust documents and wills that work together to achieve your desired result.

If you are ready to explore how trusts can help protect against wills variation claims and preserve your intended outcomes, contact the lawyers at Linley Welwood to schedule a consultation and to discuss your estate-planning options.