Appeal of B.C. Wills Variation Judgment Results in Equal Treatment of Children

Just over a year ago, I wrote about the decision of the B.C. Supreme Court in Scurek v Scurek 2020 BCSC 450.  In that case, the Court considered whether a testator could discharge his moral obligation to his adult daughter by benefiting her sons instead of her. In other words, can you “skip” a generation, and leave your estate (or some part of it) to your grandchildren instead of your children?  My previous post can be found here:  https://www.bcestatelitigation.ca/wills-variation/skipping-your-children-and-leaving-your-estate-to-your-grandchildren-the-court-may-vary-your-will/

In Scurek, the deceased had two adult children, a son and a daughter. His daughter (the plaintiff) had two sons, the deceased’s grandchildren.  Rather than dividing his estate equally between his two children, the deceased decided to leave one half of his estate to his son, and the other half of his estate to his daughter and her two sons in equal shares.  As a result, the daughter received a 1/6 share instead of a 1/2 share

The trial judge varied the will to provide as follows: ½ to the plaintiff, 2/6 to the brother, and 1/12 to each grandchild.

Last week, the B.C. Court of Appeal allowed the brother’s appeal of this decision, in Scurek v. Scurek 2021 BCCA 178.

The Court of Appeal observed that while wills variation claims by adult independent children are challenging, they had no difficulty concluding that the will did not provide adequately for the plaintiff.  Some variation was required.  However, the Court held that the trial judge should not have varied the will such that the plaintiff would receive more than her brother.  This would impinge upon the testator’s autonomy to an unnecessary degree.

Instead, each of the grandchildren was to receive a 1/12 share (as awarded by the trial judge), and then the plaintiff and her brother were to receive equal shares of the remainder (i.e. 5/12 each).  This result is consistent with a reasonable expectation that children ought to share equally in a parent’s estate.  However, it should be kept in mind that there is no requirement that children be treated equally.  A court will not necessarily vary a will to remedy unequal treatment of children.  Again, every wills variation case must be decided on its own unique set of facts.

Case Comment: B.C. Court Dismisses Attempt by Estranged Spouse to Set Aside Property Transfer and Vary Will

I am often contacted by executors or beneficiaries of an estate when they have been served with what they consider to be a “nuisance claim”. Unfortunately, the death of a loved one may present an opportunity for others to bring unmeritorious claims. The estate may be large enough to attract claims that should never have been made, and the person who would have the best evidence to oppose the claims (the deceased person) is dead.

A typical example is someone surfacing and claiming to be the deceased’s spouse for the purpose of bringing a wills variation claim or other claim. This person may be a former spouse of the deceased, a casual romantic partner, a roommate, or even a stranger. I have previously written about the test to determine whether someone has standing as a “spouse” to bring a wills variation claim here.

The B.C. Supreme Court recently dismissed a dubious claim by a person claiming to be a current spouse of the deceased (but was found not to be one) in Lee v. Chau 2021 BCSC 70. In Lee, the deceased transferred his real property into joint tenancy with his adult children as joint tenants. His children said that he intended the transfer to be a gift, that their father’s relationship with the plaintiff ended many years before, and their marriage was a sham. The plaintiff argued that she was the deceased’s wife for 19 years. She claimed that the defendants held the property in resulting trust for her benefit, and she also sought to vary the deceased’s will to make provision for her.

The Will included the following rather scathing clause explaining why the deceased made no provision for the plaintiff:

“I am giving nothing to NU LEE [the plaintiff] whom I married on May 30, 1995, as although we were married, she refused to consummate our marriage or live with me as husband and wife and on March 1, 1996, she left me and returned to Taiwan, China and has not returned. I believe that she married me for the sole purpose of facilitating her entry into Canada as a landed immigrant. She has never and refused to consummate our marriage and we have at no time lived together as husband and wife relationship”.

The Court concluded that the deceased understood the effect of transferring property into joint tenancy, and that by doing so he intended to gift his property to his children. The Court gave clear indication that it did not think much of the plaintiff’s attempt to claim an interest in the property. In addition to quoting the above passage from the will, they relied upon the following evidence that the plaintiff was estranged from the deceased:

  • The plaintiff’s extended absence from the property for many years before the deceased’s death;
  • Her full-­time residence outside Canada for more than three years before his death;
  • Her ignorance of his terminal illness;
  • Their lack of contact immediately before his death, and
  • The fact that he died without her knowledge.

The Court also held that the plaintiff was not the “spouse” of the deceased at the date of death, and therefore did not have standing to bring a wills variation claim. The plaintiff was ordered to pay the defendants’ costs. While the Court did not use the words “nuisance claim” or say that the claim was a frivolous or vexatious one, the judge was clearly not impressed by the plaintiff’s attempts to come back and try to make a claim against the property and the deceased’s estate.  This decision confirms that the B.C. Courts are fully prepared to dismiss claims that they consider to be without merit.

What Rights do Disinherited Stepchildren have in British Columbia?

Blended families, second (or third or fourth) marriages, and stepchildren are now a common occurrence. Estate planning for blended families with stepchildren is a delicate issue, and the source of many estate litigation disputes.

For example, we often see the following scenario: A will-maker has children from a first marriage. The children are now independent adults. The will-maker re-marries. He makes a will leaving everything or substantially everything to his new spouse. The new spouse promises to make a will leaving what is left upon her death to the will-maker’s children. What rights do the children have, and when should they assert them?

There are a number of potential issues here.

First, if a will-maker in British Columbia fails to make adequate provision for the proper maintenance and support of the will-maker’s spouse or child, the spouse or child may bring a claim to vary the will. However, a “child” does not include a stepchild who has not been formally adopted. As a result, the children in the above scenario could apply to vary their father’s will, but they would not be able to wait and bring a claim to vary their stepmother’s will after her death.

What about the stepmother’s promise that she would make a will leaving everything to her husband’s children? Can the children rely upon that promise as the basis of a claim?

The children may have a remedy if their father and their stepmother made “mutual wills”. When two persons agree to make mutual wills, they agree that once the wills are made that no changes may be made by either party without the other party’s consent, and when one person dies the surviving party cannot change the disposition made in their will. The fact that the father and stepmother had identical wills at the time of the father’s death (which would be “mirror wills” ) is not enough. There must be clear and unequivocal evidence of an enforceable agreement between the parties that the survivor cannot not change their will after the death of the first person.

If the parties did not have “mutual wills”, and the stepmother has simply made a promise to make a will leaving her estate to the children upon her death, then the children may still have a remedy. If the children rely upon the stepmother’s promise and as a result agree not to bring a wills variation claim in relation to their father’s estate (because they will eventually receive the assets any event), then the court may find that there was an enforceable agreement between the parties, or that the children are otherwise entitled to enforcement of the stepmother’s promise.

All of this may be further complicated if the stepmother has her own children, mixes the father’s estate with her own assets, or spends or gifts away the father’s assets during her lifetime, and so the children may be better off making a wills variation claim at the time of their father’s death to avoid the future uncertainty and risk.  A child in this situation will want to carefully consider their rights (and strongly consider obtaining legal advice) at the time of their parent’s death, rather than waiting until the stepparent’s death.

Skipping your Children and Leaving your Estate to your Grandchildren? The Court may vary your Will

A parent often worries about their children fighting over their estate after their death.  Parents seek ways to avoid conflicts between their children after their passing, while at the same time maintaining the testamentary autonomy to dispose of their estate as they see fit.  It may seem attractive to skip a generation, and leave your estate to your grandchildren, in the hopes of avoiding conflict between your children. There may be other reasons to benefit your grandchildren.  You may have better, less complicated relationships with them.  Grandchildren may also have greater financial need to establish themselves.

However, issues (and claims) still arise. What if one of your children has more grandchildren then the other children?  Does each grandchild get an equal amount, or does each “branch” of grandchildren divide the same amount equally?  Can you provide a greater benefit to your “favorite” grandchild?  What if one child doesn’t have any children?  What if you have already provided gifts or other benefits (for example, payment of tuition) to some of the grandchildren during your lifetime, but they others?

In B.C. there is another complication: the ability of children (and spouses) to bring wills variation claims. A spouse or child of a deceased person may bring an action to vary the deceased person’s will if it does not make adequate provision for the proper maintenance and support of the spouse or child.  A grandchild does not have standing to vary a will. They will have to be happy with what you decide to give them (subject to the will being varied to reduce their bequest as a result of a wills variation claim by someone who does have standing).

In Scurek v. Scurek 2020 BCSC 450, the Court recently considered whether a testator can discharge his moral obligation to his adult daughter by benefiting her sons at her expense. The deceased had two adult children, a son and a daughter. His daughter (the plaintiff) had two sons, the deceased’s grandchildren.  The plaintiff daughter had no significant assets, and was disabled and unemployable.

Rather than dividing his estate equally between his two children, the deceased decided to leave one half of his estate to his son, and the other half of his estate to his daughter and her two sons in equal shares.  As a result, the daughter received a 1/6 share instead of a 1/2 share.  The estate was worth approximately $1.6M. The plaintiff sought to increase her share of the estate at the expense of her brother’s share. Her position was that her sons’ shares should not be touched. Her brother argued that the will should not be varied, because it reflected a notional equal distribution to the deceased’s son and daughter, but also reflected a concern that if one half of the estate were given to the daughter, it would be wasted due to her inability to manage money, given her past history, thus leaving the grandsons with no benefit.

The judge held that the deceased could not discharge his moral obligation to his child by benefiting her children at her expense. The fact that one-third of the estate was allocated to the plaintiff’s sons “is of no material benefit to her” and her sons “are not obligated to support her, and they can be expected to prioritize their own needs”.  The deceased’s alleged concern that the plaintiff would waste her share of the estate was speculation. Even if it was established that the deceased had this concern, it was unfair and deserved little weight. The plaintiff was a hard worker, who had not been fortunate in financial matters.

As a result, the Court varied the will to provide as follows: ½ to plaintiff, 2/6 to the brother, and 1/12 to each grandchild.

Wills variation claims are fact specific. While a will-maker can certainly make provision for grandchildren, a deliberate attempt to skip over children and provide “their share” to their children (the grandchildren) may result in a variation of the will in favor of that disinherited child.

Knives Out: How Might Estate Litigation Matters Raised in the Film Have Played out in B.C.?

I recently had the opportunity to watch Knives Out, the 2019 murder-mystery film directed by Rian Johnson. This film was a delightful distraction, with a great ensemble cast and engaging plot. I highly recommend it.

It also touches on a number of estate litigation issues. Stuart Clark, a lawyer at Hull and Hull in Ontario, has authored an interesting discussion that can be found here: https://hullandhull.com/2020/01/knives-out/. I will discuss some additional issues which might have arisen had Mr. Thrombey resided in B.C.

WARNING – SPOILERS AHEAD!

Harlan Thrombey, a wealthy crime novelist, is found with his throat slit, the morning after his family attended his 85th birthday party at his mansion. As might be expected, his family is highly dysfunctional and Harlan has strained relationships with various family members, which include two adult children, a daughter-in-law (married to his deceased son) and various grandchildren. Harlan had recently threatened to cut one of his grandchildren out of his will. Everyone has a motive, and a detective (played by Daniel Craig) is hired to investigate the crime.

When the family gathers for the will reading (a typical storytelling device, but an event that I have yet to witness in real life), it is revealed that Harlan left his entire estate to his nurse, Marta.  He did not make any provision for his children, daughter-in-law, or grandchildren.

The family take various steps to secure Harlan’s fortune, including trying to convince Marta to renounce her inheritance, threatening to expose Marta’s mother as an undocumented immigrant, and threatening to implicate Marta in Harlan’s death. None of these efforts are successful. The mystery is solved, and Marta receives Harlan’s estate.

Stuart Clark’s post identifies various estate litigation issues in the film, including the issue of undue influence – the situation where someone is forced or pressured into making a will (or some other transaction) that does not reflect their wishes, but reflects the interests of the person influencing the vulnerable person.   A will procured by undue influence can be set aside as invalid.

In B.C., the Wills, Estates and Succession Act provides that where a person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will has the onus of establishing that the person in that position did not exercise undue influence. Harlan’s disinherited family members would likely argue that Marta, as Harlan’s full time nurse, was in a position of power such that the onus ought to be placed on her to prove that she did not exercise undue influence. If Marta is unable to meet this onus, then the will is invalid, and the prior will would likely be admitted to probate (assuming there are not any issues with the validity of that prior will).

If Marta is able to meet the onus and establish that the will was not procured by undue influence, that is not the end of the matter. In B.C., spouses and children can bring an action to vary a will if it does not make just and adequate provision for them. A wills variation claim would not be available to the daughter-in-law or the grandchildren. Only the two surviving adult children could make claims.

Wills variation claims are highly fact specific, and the court has discretion. In this case the relevant factors that the court would consider might include: (1) the strength of the relationships between the deceased and the various parties; (2) claims by adult independent children the most tenuous of wills variation claims; (3) Marta is not a family member; (4) the purported reasons for disinheritance of the children – whether they were valid and rational, (5) the estate is large, which favours making provision for everyone; (6) whether the deceased provided gifts or benefits to the parties during their lifetimes; and (7) the relative financial and other circumstances of the disinherited children and Marta.

COVID-19: B.C. Suspends Time Limits for Commencing Legal Proceedings

On March 26, 2020, the Minister of Public Safety and Solicitor General took the exceptional step of suspending limitation periods to commence court proceedings in British Columbia. Ministerial Order no. M086 can be found here.

The Order was made in response to the COVID-19 pandemic and the declaration of a state of emergency throughout the Province of British Columbia on March 18, 2020.  This has affected access to the courts.  Supreme Court registries are not currently providing in-person registry services (which includes the filing of pleadings) while the Court’s regular operations are suspended. Electronic filing is still available, as are other means which do not require in-person interaction with the registry (the B.C. Supreme Court announcement can be found here).

The Order provides that every mandatory limitation period and any other mandatory time period that is established in an enactment or law of British Columbia within which a civil or family action, proceeding, claim or appeal must be commenced in the Provincial Court, Supreme Court or Court of Appeal is suspended.  The Order applies from the date of the Order (not from the March 18, 2020 declaration of a state of emergency) until the declaration of emergency (or any extension) expires or is cancelled.

This is an extraordinary measure.  Limitation periods provide for a deadline for bringing a claim.  Failure to commence a claim within the limitation period will usually result in dismissal of the claim as statute-barred.  Limitation periods are intended to encourage the timely pursuit of claims, and reduce prejudice to the administration of justice.  If a plaintiff is allowed to delay the commencement of a claim, the defendant may be put in the unfair position of having to disprove a claim when key evidence and witnesses have been lost due to the passage of time.

Persons with potential claims should be aware of the Order.  They now have more time to bring claims, and should not be concerned if they are unable to file pleadings during the state of emergency due to court closures.

Executors should also consider the effect of the Order on estate administration matters, most notably distribution of estate assets to beneficiaries.  The Wills, Estates and Succession Act [SBC 2009] Chapter 13 provides that the personal representative of a deceased person must not distribute the estate of the deceased person within 210 days following the date of the grant of probate or administration, absent a court order or the consent of the beneficiaries.  This is so that potential claimants can bring claims before estate assets have been distributed, some of which must brought within 180 days of the issuance of the grant (most notably wills variation claims).  Executors should obtain advice before distributing assets even after 210 days, if the 180 day deadlines have been suspended.

These circumstances are quickly changing (and the state of emergency will eventually be cancelled, ending the suspension), and so any affected party, or party seeking to rely upon the suspension to delay filing a claim, should regularly check the websites of the B.C. Courts and the B.C. Attorney General.

You are permitted to arrange your affairs to avoid wills variation claims

Under the Wills, Estates and Succession Act [SBC 2009] Chapter 13, a spouse or child of a deceased person may bring an action to vary that deceased person’s will, if the will does not make adequate provision for the proper maintenance and support of the spouse or child. This is often a source of frustration for a will-maker, who seeks to have testamentary autonomy and final decision-making power over how their assets will be distributed after their death.

However, wills variation claims only relate to assets that form part of the deceased’s estate. If assets pass outside of the deceased’s estate, then they are not available to be re-distributed as part of a wills variation action. Assets can pass outside of an estate in a variety of ways, including joint registration of property (so that the asset passes to the surviving joint owner), designation of direct beneficiaries, or settling assets into a trust. If there are no assets held in an estate, then there is no benefit to a disappointed beneficiary in varying a will. In response to this situation, beneficiaries have attempted to challenge steps taken to avoid wills variation claims.

In British Columbia, the Fraudulent Conveyance Act [RSBC 1996] Chapter 163 provides that a disposition of property is void and of no effect if made to delay, hinder, or defraud creditors and others of their just and lawful remedies. In other words, you cannot take steps to hide assets and avoid claims.  However, B.C. courts have repeatedly held that a person may arrange their affairs to avoid possible wills variation claims. A wills variation claim, which arises upon the death of the will-maker, does not qualify a claimant as a “creditor or other” within the meaning of the Fraudulent Conveyance Act.

In 2006, the British Columbia Law Institute proposed that an anti-avoidance provision be added to the legislation, which would provide that a transaction conferring a benefit on a second person would be voidable against an eligible claimant if it was made by the deceased for the purpose of defeating rights under the dependents relief legislation.

The legislature declined to act on the recommendation. The legislature has not seen fit to pass legislation or amend existing legislation to prevent the avoidance of wills variation claims. Will-makers are still permitted to arrange their affairs to avoid possible wills variation claims, most commonly by stripping their estate of any assets.

A disappointed beneficiary of a stripped estate may still have a remedy. For example, there may a claim that certain assets which appear to pass outside of the estate should actually be considered part of the estate and available for a wills variation claim.

A Testator Cannot Override a Beneficiary’s Statutory Right to Vary a Will

A spouse or child of a deceased person may apply to vary the will of that deceased person, if they do not believe that it made adequate provision for them.  This is obviously frustrating to testators who wish to have the autonomy to distribute their estate as they see fit.

To discourage wills variation claims, testators have attempted to include clauses to discourage wills variation claims or threaten consequences for bringing such claims.  These provisions have been held to be contrary to public policy and void.

For example, in Bellinger v. Nuytten Estate 2003 BCSC 563, the deceased included a clause in her will which provided that if any of the beneficiaries contested the terms of the will, then that beneficiary shall forfeit any legacy they may be otherwise entitled to receive.  The clause was void since it was against public policy to allow a testator to override a beneficiary’s statutory claim (to vary a will) by a provision in her will.

In Ketcham v. Walton 2012 BCSC 175, the deceased left a will that disinherited his adult independent children and instead left his estate to several friends and charities.  The will instructed the executor to take an active role in defending the will if any of the children brought a wills variation claim. The will stated that the executor was authorized to deplete the estate, if necessary, to defendant against the wills variation action, taking as many appeals as necessary to ensure that the deceased’s intentions are carried out.

The court held that while this clause does not obviously prevent a beneficiary from an inheritance if they bring a wills variation claim, that possibility existed.  As a result, the clause was void as contrary to public policy, as it purported to deny the deceased’s children their recourse to the courts.  It was, in effect, the same as what the deceased tried to do in the Bellinger case.

The clause in Ketcham also offended the rule that the executor must remain neutral in wills variation proceedings.  An executor cannot choose sides and take an active role in a wills variation claim.

The courts will not permit a testator to override a spouse or child’s statutory right to apply to vary a will, and any attempt to do so will likely be held to be void.  If you are a testator seeking to avoid wills variation claims, there are other steps which ought to be taken instead.  If you are an executor, you should not take an active role in wills variation litigation.  If you are a disappointed beneficiary, you should not be dissuaded from pursuing your rights by such a clause.

Who Can Dispute the Validity or Provisions of a Will?

A will may be attacked on the basis that the will-maker had lacked the necessary mental capacity to make the will or the will was the result of fraud, coercion or undue influence from someone else.

Such claims may be made by anyone who would benefit from an earlier will if the contested will is set aside or by someone who would, according to Part 3 of the Will, Estates and Succession Act, [SBC 2009] Ch. 13 (“WESA”), benefit if the deceased had died without a valid will at all.

In addition, s. 60 of the WESA gives the spouse and children of a will-maker the right to claim a variation of the will if it does not make adequate, just and equitable provision for him or her. A will variation claim must be commenced within 180 days of the executor named in the will obtaining a grant of probate of the will.

A dispute as to the validity of a will may be started by filing a caveat to prevent the executor obtaining a grant of probate without first proving the validity of the will in solemn form to the satisfaction of the court. If the court is satisfied as to its validity the will may still be subject to a will variation claim.

In an action for proof of a will in solemn form, the court must be satisfied that it was signed in compliance with the statutory formalities (in writing, signed at the end by the will-maker in the presence of at least 2 witnesses who also signed), and the will-maker knew and approved of the contents of the will when signing and he or she had the necessary mental capacity to make a will at the time.

Although the need for strict compliance with statutory formalities has been relaxed by s. 58 of the WESA, the   need to prove that the will-maker knew and approved the contents of the will or other testamentary document or record and he or she had the necessary mental capacity when making the will remains firmly entrenched in the law.

Will-Making Capacity

The test for will-making capacity is not too onerous. Sufficient mental capacity may exist despite cognitive deterioration. The will-maker may have sufficient mental capacity even when his or her ability to manage other matters is impaired or compromised. Having a less than perfect memory is not sufficient to take away will-making capacity unless it is so great as to leave the person without a mind capable of making a valid will. The law recognizes that cognitive deterioration may still allow for short periods of lucidity when will –making capacity is present.

In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory” which is sufficient to understand the nature and effect of making a will. This includes an understanding as to whether there are persons who would expect to benefit from the will-maker’s estate and the extent of the property of which he or she is disposing. The assessment as to whether the will-maker had possessed the needed mental capacity is a highly individualized question of fact to be determined in all the circumstances. A will-maker cannot be found not to have will-making capacity simply because the will leaves his or her estate in a manner that some people might think unkind.

The person trying to prove the validity of a will may be assisted by a presumption as to the validity of the will. If the will was signed according to the statutory formalities after it was read over by or to a will-maker who appeared to understand the meaning of the will, it may be presumed that the will-maker possessed will-making capacity and knew and approved of the contents of the will when making it.

What if there are Suspicious Circumstances?

The presumption of validity may be rebutted by evidence of well-grounded suspicious circumstances concerning the preparation of the will or tending to call into question the mental capacity of the will-maker at the time or tending to show that the free will of the will-maker had been overborne by acts of coercion or fraud or undue influence.

The standard of proof for establishing suspicious circumstances is a balance of probabilities (more than a 50% chance), which is the standard of proof that applies in civil (non-criminal) litigation.

In order to rebut the presumption of validity, persons attacking the will must demonstrate that there is some evidence which, if accepted, would tend to negate knowledge and approval or will-making capacity. It is important to remember that mere suspicion that something improper may have happened is not sufficient to rebut the presumption of validity; the evidence must raise a specific and focused suspicion. The absence of such evidence will be fatal to a suspicious circumstances argument.

Suspicious circumstances have been found in a wide range of situations which are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include situations where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the will-maker), or where the will favours someone who the will-maker had not previously provided for and does not fall within the class of persons that will-makers usually remember in their wills, namely next of kin.

The validity of a will does not stand or fall on the presence or absence of suspicious circumstances. If suspicious circumstances are established, the presumption of validity fails and the legal burden of proof reverts to the person trying to prove the will to establish the knowledge and approval of the will-maker as well as his or her will-making capacity if the suspicious circumstances had reflected on that capacity.

Wills Variation Claims in BC

Your last will and testament may represent your true intentions with respect to the administration and distribution of your estate.  You likely gave careful thought to what is fair and reasonable.  However, most people in British Columbia are aware that having a will is not necessarily the end of the matter.  After death, your spouse or children may apply to vary your will in certain circumstances.

These circumstances are set out in section 60 of the B.C. Wills, Variation and Succession Act.  That section 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.

This section has resulted in many disputes, lawsuits and reported court decisions.  Every case has a unique set of facts, and raises a unique issues.  Even a will which may on its face appear fair may result in a (successful) variation claim.  A deceased parent, with no surviving spouse, who leaves their estate in equal shares to their children may seem fair.  But what if one child stepped up and took care of the parent for many years?  What if one child received a large gift before the parent died?

Some Common Issues that Inevitably Arise in Wills Variation Cases

Some issues which the court must consider in a wills variation case (there are many more) include:

  • What is “adequate provision for the proper maintenance of the will-maker’s spouse or children”? This is assessed in the context of legal norms and moral norms, and what a judicious person would do in the circumstances, by reference to contemporary community standards.  If this sounds vague and non-specific, this is because the concept of “adequate provision” is a flexible one, which turns on the particular circumstances of the case.  There is not necessarily a clear answer, and what is adequate may change over time as the views of society change, or may even vary from judge to judge.
  • Did the deceased leave evidence of his or her reasons for making certain gifts or not making adequate provision for his or her spouse or children? If so, the court may accept evidence of the reasons (but it doesn’t have to), and can decide how much weight to give this evidence in light of all the circumstances.
  • If there is to be a variation, what is adequate, just and equitable? This is as flexible as the idea of whether the will-maker made “adequate provision” in the first place.
  • To what degree should the court consider gifts made by the will-maker during his or her lifetime?
  • Did the will-maker take steps to arrange his or her affairs to attempt to avoid a wills variation claim, for example by putting assets in a trust or in joint ownership with right of survivorship? If so, was this effective or should the estate plan be unwound so that assets are returned to the estate?
  • What if the person named as executor is also a beneficiary and wants to vary the will?
  • What if the person named as executor is also a beneficiary and is happy with the will and wants to defend against a wills variation claim brought by an unhappy beneficiary?
  • Only a spouse or child of the deceased can apply to vary the will. Sometimes the parties cannot even agree that the applicant was the “spouse” of the deceased.

All of this is complicated by the fact that the parties to the litigation are family, and emotions run high.

The courts have broad discretion to vary wills.  The province had the opportunity to get rid of or put limits on this discretion when the Wills Variation Act was replaced with the Wills, Estates and Succession Act in March 2014.  They chose not to do so, and so you need to be aware of the possibility of a wills variation claim, whether you are a will-maker, an executor, an unhappy (or happy) beneficiary or a spouse or child of a deceased person.