Wills Variation in B.C.

Wills Variation in BC

Written by Natasha Nair, Linley Welwood LLP. March 9, 2022.

In British Columbia, if a will-maker has not adequately provided for their spouse and/or children, the Wills, Estates and Succession Act (WESA) governs Wills and the variation of Wills in certain circumstances. These circumstances are set out in section 60 of WESA, which provides as follows:

…if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

What is Wills Variation?

Wills variation is an opportunity for a surviving spouse or child, including an adult child, of a deceased will-maker to apply to court for a court order to vary the Will. In British Columbia, children (natural and adopted), including adult children, can apply to court to have the deceased’s Will varied.

Spouses including married spouses, common-law spouses, and spouses of the same gender may also apply to court to have the deceased’s Will varied. Under WESA, married couples are no longer considered to be spouses if they have lived apart for at least two years and have both intended to do so as a permanent arrangement. Common-law spouses are no longer considered to be spouses when one or both end the relationship.

Learn how to apply for wills variation.

What factors are considered in a Wills Variation Claim?

In deciding whether to vary a Will, courts will consider the following factors:

1. The will-maker’s legal obligations to a spouse or child;
2. The relationship between the spouse or child and the will-maker;
3. Promises made by the will-maker prior to death;
4. Any wrongdoing and/or estrangement and the role that the will-maker played;
5. The amount of support given by the will-maker to the spouse or child and the level of reliance by the spouse or child;
6. The needs of the spouse or child;
7. The size of the estate;
8. Contributions made by the child or spouse;
9. Gifts and benefits made by the testator outside of the Will both during and after the deceased’s life; and
10. The will-maker’s reasons for the disinheritance.

What should you consider before filing a wills variation claim?

These are some of the factors that play a role in whether a court will vary a Will. A wills variation lawyer will work closely with you to examine your situation and determine whether you have adequate grounds to vary a Will.

Time Limits

It is imperative that you act fast as there are strict time limitations when submitting a wills variation claim. To proceed with a claim, a Notice of Civil Claim must be filed within 180 days of the date of issuance of an estate grant, grant of administration, or resealing grant.

Find out how to avoid a wills variation claim.

Applying to vary a Will is complex. If your deceased parent or spouse has not made adequate provision for you in their Will, we strongly recommend that you obtain legal advice from a wills variation lawyer as soon as possible. Contact our wills variation lawyer, Natasha Nair with your questions today.

© Linley Welwood LLP. The contents of this article do not constitute legal advice. Readers should seek legal advice in relation to their own specific circumstances.