What is the Wills, Estates, and Succession Act of British Columbia?

Wills, Wills Variation | July 30, 2020

Before making a claim against an estate, it is important to first understand what the Wills, Estates, and Succession Act of British Columbia is and whether or not your claim will be supported by it. Consulting with a lawyer, such as one of the wills, estates, and trusts lawyers from Linley Welwood, will provide you with access to expert advice, while also ensuring that your best interests are being properly represented.

Learn all about will variation in BC.

The British Columbia Wills, Estates, and Succession Act

BC’s Wills, Estates, and Succession Act (WESA) is a statute that allows the surviving spouse or child of the deceased to contest their will on the basis that it is inadequate and unfair. This could mean that the claimant was completely disinherited, given a minimal sum, or given a life interest rather than the entire property outright. Eligible claimants who can contest a will include the surviving spouse, common-law partner, and both the natural and adopted children of the deceased but not stepchildren.

Things to consider before filing a wills variation claim.

Interpretation of WESA

Some of the things that will be taken into consideration when determining if a will should be varied or not include:

Contribution and Expectation

In the event that the children or spouse of the deceased made contributions to their estate or cared for the deceased, the court may determine that there is a moral obligation to provide for the independent children or spouse.

Misconduct/Poor Character

Under WESA, the court is allowed to refuse variation to anyone whose conduct or character disentitles them to relief; however, their conduct must be relatively severe in order to justify disinheritance.

Estrangement Neglect

In the case of an estrangement, the court will often ask about the reasons for the estrangement and the role the testator played. If the testator was largely at fault for the estrangement, it may enhance the moral duty of the testator to rectify the neglect of their children.

How can you avoid wills variation claims?

Gifts and Benefits Made by the Testator Outside of the Will

The court will take into account any lifetime gifts or benefits that the testator gave to their children, such as insurance proceeds or pension benefits.

Unequal Treatment of Children

If there is no relevant reason for an unequal distribution of assets, then it is expected that adult children will equally share the value of the estate.

Testators Reasons for Disinheritance/Subordinate Benefit

While the deceased can provide reasons for disinheritance, if those reasons are inaccurate, the court may vary the will under the provisions of WESA.

If you would like to learn more about the Wills, Estates, and Succession Act of British Columbia, or if you are interested in our legal services for wills, estates, and trusts, please contact Linley Welwood at 604-850-6640 or by filling out a contact form on our website.

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