British Columbia’s wills variation regime places limits on a will-maker’s freedom to dispose of their estate as they see fit. Under the Wills, Estates and Succession Act (“WESA”), courts may vary a will that fails to make adequate, just and equitable provision for a child or spouse.

While a will-maker’s moral obligation to independent adult children has often been described as “tenuous,” a different — and heightened — standard applies where the claimant is an adult child living with significant disabilities. The recent decision in Wols v. Funk, 2026 BCSC 404, is an illustration of that principle.

Background

Wols involved a wills variation claim brought by the Public Guardian and Trustee as litigation guardian for the deceased’s only child.

George Wols died in 2021. He was predeceased by his wife in 2014, and survived by his son, Gerald (“Gerry”) Wols.

Under a 2014 will:

• Gerry was to receive approximately 25% of the estate; and
• Mary and Ewald Funk were to receive the remaining 75%.

The estate was valued at approximately $490,000. No reasons were provided by George for this distribution.

The Funks were not family members. Their relationship with the Wols began in 2006 through paid housekeeping services, but also developed into a personal relationship over time. They were named as executors in the will.

Gerry, age 64 at trial, lived with lifelong and significant cognitive and physical disabilities. He had never been capable of independent living and resided in a care facility. He relied on government benefits that provided only a subsistence level of support. The evidence established that even modest additional resources would materially improve his quality of life.

Legal Framework

Section 60 of WESA permits a court to vary a will that does not make adequate provision for the proper maintenance and support of a child.

The analysis is objective. Courts assess whether the will meets the will-maker’s legal and moral obligations, measured against contemporary community standards. The central question remains: what would a “judicious parent” do in the circumstances?

In claims by adult children, the focus is typically on moral obligations. Courts in B.C. have identified a number of factors for assessing the existence and strength of moral obligations owed to adult children. I have written previously on those factors and they are listed here.

Importantly, B.C. courts have repeatedly recognized that a will-maker owes an enhanced moral obligation to a child with disabilities, as compared to an independent adult child.

Certain arguments advanced in this context have been rejected by courts in B.C.:

• Subjective intention: the fact a will-maker considered the circumstances of their child with disabilities and obtained legal advice is not determinative. The test is objective – whether the provision meets “society’s reasonable expectations of a judicious parent.”
• No competing moral claims from non-spouses/children: worthy friends, caregivers, and extended family do not attract legal or moral claims under WESA – or the court’s consideration when assessing a child’s claim.
• Availability of government benefits is not a defence: the test is not “needs-based” or measured at the subsistence standard. A will-maker’s obligation is not satisfied or diminished by the availability of public funding, which may in any event be uncertain.

Application in Wols v. Funk

The Court had little difficulty concluding that the will failed to make adequate, just and equitable provision for Gerry.

The Court considered:

• There was no estrangement or misconduct in the parent-child relationship;
• George’s estate was not so large as to justify the provision made for Gerry relative to that made for the Funks;
• Gerry lived at a subsistence level, and additional funds would materially improve his life;
• There was no evidence explaining George’s decision to limit Gerry’s share;
• Gerry’s disabilities rose to the level that he would never be able to live independently and his needs had increased over time, requiring additional support;
• There were no competing legal or moral claims — the Funks, while supportive and involved, did not qualify.

At the same time, the Court acknowledged that the Funks had played a meaningful role in George’s life, and that some recognition of his testamentary wishes was appropriate.

The will was therefore varied to provide:

• 80% of the estate to Gerry; and
• 20% to the Funks.

The result reflects the balance at the heart of WESA: testamentary autonomy yields where necessary, but is not entirely displaced.

Key Takeaways

• Enhanced obligation: Will-makers should be advised by drafting solicitors that courts will generally expect increased provision for adult children with disabilities, even relative to other potential beneficiaries.
• The existence of government benefits for a child with disabilities will not insulate a will from variation.
• Objective standard: Courts apply a “judicious parent” test grounded in contemporary norms — not the will-maker’s subjective intentions.
• A child’s entitlement under WESA will not be displaced by non-child/spouse beneficiaries, even deserving ones.

Recently, I wrote about DNA testing orders in estate litigation and noted that, to date, British Columbia courts have limited the legal definition of “child” for wills variation claims to biological or adopted children. I also highlighted that the Court of Appeal had left open the possibility that a future case could revisit this definition.

That possibility was directly considered in the chambers decision of Stainer v. Thurgood, 2026 BCSC 326.

In Stainer, the administrators of an estate applied under Rule 9‑6 of the Supreme Court Civil Rules to summarily dismiss a wills variation claim on the basis that there was no genuine issue for trial. The plaintiff admitted that she was neither the biological nor adopted child of the deceased. The dispute centered on whether she nonetheless had standing to bring her claim.

The plaintiff and the deceased discovered via DNA testing in 2016 that they were not biologically related. In 2018, the deceased executed a will leaving his estate to his brother and made a statutory declaration that he had never fathered or adopted any children. The plaintiff, however, had been listed on the deceased’s birth certificate, raised as his child, actively parented by him, and maintained a lifelong relationship with him, albeit with some rough patches.

The defendants argued that the Court was bound to dismiss the claim by the Court of Appeal’s decisions in Peri v. McCutcheon, 2011 BCCA 401 and Hope v. Raeder Estate, 1994 CanLII 2185 (B.C.C.A.), which held that for purposes of wills variation claims, “child” is limited to biological or adopted children. They also noted that with the introduction of the Wills, Estates and Succession Act in 2014, after Peri was decided, the legislature did not expand this definition.

The plaintiff countered that she was a child of the deceased in all practical and moral respects and that it would be contrary to modern ethical standards to find that he owed her no moral or legal duty at death. She relied on shifting social norms in family law, including recognition of diverse family structures, and argued that the courts should reconsider the definition of “child.”

Courts considering applications to strike claims under Rule 9-6 cannot weigh evidence against the plaintiff, and should tend toward allowing novel claims. A claim can only be dismissed if, assuming all uncontested facts are true, it is “beyond a reasonable doubt” that no genuine issue for trial exists.

The chambers judge considered the comments of the court in Peri, that the question of expanding the definition of “child” “should await a more compelling factual foundation.” The plaintiff argued that her relationship with the deceased was that “‘more compelling” foundation and that societal norms had evolved beyond the heteronormative assumptions underlying existing precedent. She relied on the legal principle that the law is a “living tree” that can evolve to address contemporary realities.

The Court in Stainer ultimately concluded that the precedents in Hope and Peri did not bar all wills variation claims from non-biological and non-adopted children in B.C., and rather expressly left open the possibility of an expanded definition.  A triable issue was present, the defendants’ application was dismissed, and the plaintiff’s claim could proceed to trial.

Takeaway

If the trial of this matter goes ahead, and is decided in the plaintiff’s favour, the case could be a significant development in estate litigation in B.C.; potentially allowing stepchildren and others, like the plaintiff, who were previously excluded to bring wills variation claims.

In B.C., a will-maker’s spouse or child (including an adult independent child) can bring an action to vary the will-maker’s will, if the will does not made adequate provision for them. There is no requirement that a will-maker treat their children equally in their will. However, unequal treatment is a frequent cause of wills variation litigation.

When considering wills variation claims by adult children, the Court must consider the will-maker’s moral duty owed to adult children, to be assessed using the objective standard of the objective will-maker, and keeping in mind that the moral duty may be negated where there is just cause. In other words, a will-maker may treat their children unequally (or even disinherit a child), when there are valid and rational reasons for doing so.

Some litigants sought to make the argument that if the will-maker provides reasons that are valid and rational, the Court should defer to the will-maker’s decision to treat children unequally. The argument was that if the reasons were valid and rational, then the Court cannot vary even if other factors weigh in favor of a variation.

The B.C. Court of Appeal was asked to consider this issue in Tom v. Tang 2023 BCCA 221. In Tom, the will-maker had five children. Seven days before her death, the will-maker changed her longstanding will which provided that each of her five children received an equal share of her estate. The new will provided that two of her children, who had lived with her and provided her primary care for three years, would received approximately 85% of the estate. The other three children would receive approximately 5% each. The estate was valued at approximately $2.3M. The will-maker had written a letter explaining why she intended to favor two of her children.

The three children receiving lesser amounts brought an action to vary the will. The trial judge varied the will to provide that the two children who provided primary care would each get a gift of $300,000, and then the remainder of the estate would be divided equally among the five children. This was viewed as a balance between the will-maker’s attempt to recognize the role of the two children in her care, but also meet her moral obligations to all of her children.

The issue on appeal was whether the will should have been upheld given that the will-maker had valid and rational reasons for leaving less to three of her children. Again, the argument was made that if there are valid and rational reasons, then the will cannot be varied.

The B.C. Court of Appeal made clear that this is not the law. Previous cases did not stand for the principle that a will-maker’s unequal treatment of adult children must be deferred to, without regard to the objective standard of the reasonable will-maker and current social norms, as long as the subjective reasons given for the unequal distribution are valid and rational.

A will-maker’s moral duty to adult children must be assessed from the viewpoint of a reasonable testator, and that the moral duty may be negated where there is just cause. So, the will-maker’s purported “valid and rational reasons” are only one factor, and the trial judge did not err in assessing using the objective standard.

The Court of Appeal agreed with the trial judge that the will did not make adequate provision for the three children, and agreed that the will ought to be varied. The Court of Appeal ordered that the two children who provided care would each get 30% of the estate, and the remaining three children should receive an equal share of the remaining 40% of the estate. This would provide the two care-providing children with slightly more than they would have received at trial.

While this case provides some guidance to wills variation claimants, it creates uncertainty for will-makers, as it shows that even though the will-maker may have had reasons to treat their children unequally, and these reasons are valid and rational, their will may still be varied by the court due to other factors.

You cannot assume that if you leave your estate to your children in equal shares, then the court cannot or will not vary it.  Making equal provision for your children in your will does not mean that the will is immune from a successful wills variation action.  There may be good reason to make greater provision for one child over the other(s), and the child who claims they ought to have received more may successfully bring an action to vary your will to receive a larger share of the estate than their siblings.

This was the case in the recent B.C. Supreme Court decision of Rawlins v. Rawlins 2023 BCSC 466.  In Rawlins, the deceased had three sons.  Her will provided that if she survived her husband (which she did), her estate was to be divided equally between her three sons.  The estate was worth approximately $2.5M.

The plaintiff (one of the sons) brought an action to vary his mother’s will, so that he received a larger share of the estate than his brothers.

In B.C., a spouse or child of a will-maker may bring an action to vary a will if it does not make just and adequate provision for them.  When deciding a wills variation claim, the court must consider (1) whether the will properly accounts for the legal duties owed to the spouse and children during the will-maker’s lifetime, and (2) the moral duties toward the will-maker’s spouse and children.

Legal obligations include spousal support and spousal property rights, child support obligations, and, in some cases, unjust enrichment claims.  Moral obligations are society’s reasonable expectations of what a judicious spouse or parent would do in the circumstances, with regard to contemporary community standards.  The court has a wide discretion to vary a will to make proper provision, and it is a fact specific inquiry.

In Rawlins, the plaintiff argued that he had a legal claim based on unjust enrichment, and a greater moral claim.  He relied on the following grounds in support of his position that he should receive a greater share of his mother’s estate: (1) his role in contributing to and maintaining the deceased’s home; (2) his role in looking after both of his parents in their final years, and (3) his expectation of receiving the home and certain investments upon the passing of his parents, based on statements allegedly made by his parents.

With respect to legal obligations, the plaintiff argued that the deceased’s estate was unjustly enriched by (1) the care that he provided to his parents in their final years, and (2) his alleged contributions to their home.

With respect to the home, the Court held that the plaintiff failed to show that his alleged contributions to the property involved any appreciable material benefit to the estate or materially increased the value of the property.  The plaintiff paid nothing towards the acquisition of the property, or the maintenance of the property (including property taxes or insurance).  The labour that he provided was merely to (1) assist his father with renovations, or (2) provide routine upkeep.  “The most that can be said is that [the plaintiff] contributed toward the Maintenace of the property where he lived, rent free.”

However, the care that the plaintiff provided for his parents did provide a material benefit to the estate.  The plaintiff was the primary caregiver for both of his parents during their final years, and cases have recognized that services by an adult for their parent have a legally recognizable value.  If the plaintiff had not been available to provide care, his parents would have paid for these services, which would have come out of what ultimately became estate funds.  The Court held that the deceased’s estate had a legal duty toward the plaintiff, in the form of an unjust enrichment claim, based upon the care provided.

With respect to moral obligations, the plaintiff’s contributions to the property were minimal, and were not a factor in his favor.  The care that he provided for his parents formed the basis of a legal obligation (the unjust enrichment discussed above), and so the Court did not consider this factor as a separate, independent basis for a moral claim by the plaintiff.  Finally, the Court did not find a moral claim based upon the plaintiff’s alleged expectation that he would inherit a greater share based upon statements made by his parents.  The Court held that his “expectation” of inheriting certain assets was “largely the product of [the plaintiff’s] subjectively-held beliefs and sense of entitlement.”  There was no independent reliable evidence that the plaintiff was given any reason to expect that he would receive a greater share of the estate.

The defendant brothers also pointed out that the plaintiff continued to live in his parents’ house, rent free, after their deaths, and so since his mother died in 2018, the estate has paid the plaintiff’s housing costs.

The Court weighed all of the circumstances, and concluded that apart from the unjust enrichment claim, the plaintiff failed to establish that his mother’s will did not make adequate provision for him.  The Court varied the will to provide that the plaintiff would receive a gift of $115,000, less two thirds of all property taxes paid or payable by the estate for the property from 2018 to 2022.  The rest of the estate was to be divided equally as between the three sons, as provided for in the will.

This case serves as a reminder that just because you provide equally for your children in your will, there may still be a successful wills variation claim.  It is also noteworthy that this relatively modest variation was only obtained after the time and expense to the parties of an eleven-day trial.

The B.C. Supreme Court recently considered a classic wills variation scenario:  an adult independent child from a deceased’s earlier relationship seeks to vary their parent’s will, which makes no provision for them, and instead provides for their second spouse.  It is very common to see wills variation claims in blended families.

In Pascuzzi v. Pascuzzi 2022 BCSC 907, the plaintiff was 32 years old when her father died.  Her parents had a short relationship, which ended before the plaintiff was born.  A few years later, the deceased met the person who would later become his wife, and he remained married to her until his death.  He had two children with her, and she had two children from a prior relationship.

The deceased left a will that was signed back in 1996, when the plaintiff was only nine years old.  The will provided for a trust that paid $450/month until the plaintiff turned 19 years old.  The remainder of the estate passed to the deceased’s wife.  In effect, the plaintiff was completely disinherited.  She brought a claim to vary her father’s will.

The Court went through the test for variation of a will by an adult independent child.

Wills variation claims must balance two fundamental interests: adequate, just and equitable provision for the will-maker’s spouse and children, and the will-maker’s decision to dispose of their estate as they see fit (testamentary autonomy).  In B.C., testamentary autonomy must yield to what is adequate, just and equitable.

To determine what is adequate, just and equitable, the court must look at the will maker’s legal and moral obligations.  When a wills variation claim is brought by a self-sufficient adult child with full capacity:

1. There will usually be no legal obligation owed by the will-maker; and
2. The moral claim will usually be more tenuous than that of a spouse or dependent child, but if the size of the estate permits, some provision for the child should be made, unless there are circumstances that would negate such an obligation.

The following circumstances are relevant when determining whether there is a moral obligation owed to an adult independent child (and the strength of that obligation):

1. relationship between the will-maker and claimant, including abandonment, neglect, and estrangement by one or the other;
2. size of the estate;
3. contributions by the claimant;
4. reasonably held expectations of the claimant;
5. standard of living of the will-maker and claimant;
6. gifts and benefits made by the testator outside the will;
7. will-maker’s reasons for disinheriting;
8. financial need and other personal circumstances, including disability, of the claimant;
9. misconduct or poor character of the claimant; and
10. competing claimants and other beneficiaries.

The Court in Pascuzzi went through each factor, and concluded that the deceased owed a moral obligation to the plaintiff.  Of particular relevance was the evidence that the deceased was in the course of ensuring that the plaintiff benefited from his estate.  For two or three years prior to the deceased’s death, he discussed estate planning with his wife, and agreed that the plaintiff “should get something”, although it was not clear what this would be, and of course he didn’t take steps to make a new will or otherwise benefit the plaintiff before his death.

The deceased’s wife pled that the deceased was not the plaintiff’s biological father.  However, she conceded at trial that she had no evidence to support this allegation.

In Pascuzzi, the Court did not fully accept either of the parties positions: on the one hand, that the deceased effectively abandoned the plaintiff as a child and never made an adequate effort to reconcile, and on the other hand that the deceased was a loving and caring father and any difficulties were caused by the plaintiff’s mother.  The deceased made a “terrible error in judgment” in the plaintiff’s early childhood, but over the course of time and reflection knew that he had made that error.

It appears that the estate was worth approximately $1.8 million.  The Court varied the will to provide that the plaintiff will receive 30% of the net value of the estate.

This case also serves as a useful reminder of the highly intrusive nature of wills variation litigation, especially if the matter proceeds to a trial.  The Court went through the history of the relationship between the plaintiff and her father in great detail.  The Court went so far as to quote from “an ill-advised and inappropriate letter” sent by the deceased to the plaintiff’s mother in 1992 (when the plaintiff was four years old), indicating that he would not be having the plaintiff to visit anymore.  When the Court is asked to consider the nature of the relationship between the will-maker and the person making the claim (including where there is estrangement), this often requires the Court to hear evidence on very personal and private matters, which becomes a matter of private record.

I am often contacted by the child of a deceased parent who strongly believes that they have not been treated fairly in that parent’s will (or one of their siblings is making this claim against them).  The death of a parent often brings up long-held perceptions of favoritism, unfairness and lack of appreciation. It is not unusual for a child to seek to revisit events going back years or even decades. This commonly results in wills variation claims and other estate litigation.

One “historical” claim that is sometimes brought is a claim relating to unpaid contributions to a family business. Children are often expected to contribute time and efforts to a family business with no remuneration (but they receive room and board). When those children are not treated fairly under their parents’ wills, they seek to go back and revisit the issue of the unpaid services that they provided.

This was the case in the recent B.C. Supreme Court decision of Tang v. Tom 2021 BCSC 1399. In Tang, the plaintiffs sought a variation of their mother’s will, which failed to treat her five children equally.

One of the plaintiffs (Linda) also brought a claim in unjust enrichment with respect to her work at her parents’ grocery store between 1971 and 1981. She described her assistance to her parents as “extraordinary efforts.”

The family came to Vancouver in the 1960s, when the children ranged in age from eight to 17. The family (parents and children) worked extremely hard to improve their standard of life. The Court described their work ethic as “remarkable”. The parents purchased a small grocery store with an attached home and the family moved there in 1971. All of the children except one worked part-time at the store until it was sold in 1981. None of them were paid for their work. The children also worked various other jobs, and contributed their paycheques to the “family pot” of income to pay expenses. The children received pocket money, vehicles to commute to school, and payment of most of their living and school expenses.

Linda argued that she was a pivotal figure in the success of the grocery store business. The Court held that while Linda may have made significant contribution to the store (which at times may have been greater than the contribution of her younger siblings), she tended to exaggerate the scope and scale of her contribution, while minimizing the contributions of her siblings.

The Court had to consider whether Linda’s historic contributions to the family business constituted unjust enrichment. In order to satisfy the requirements for a claim in unjust enrichment, a plaintiff must show: (1) an enrichment of the defendant (in this case her mother/her mother’s estate), (2) a corresponding deprivation of the plaintiff, and (3) an absence of juristic reason for the enrichment.

A claim in unjust enrichment can be difficult to establish in the context of a family business, as there will often be mutual benefits to family members as they function as a common unit. This was the case in Tang. The Court concluded that while the contributions by the children (and in particular Linda) may have been significant (i.e. there was enrichment), the benefits to the children (housing, food, other amenities, etc…) were also significant. As a result, Linda failed to establish a legal claim against her mother’s estate for unjust enrichment.

Linda did have a moral claim to a portion of the estate, as did her siblings, as a result of their contributions to the family business and the common family unit. However, she did not have a legal claim in unjust enrichment distinct from that of her siblings.

The deceased left an estate which included real property assessed at approximately $1.7M, and personal property (bank and investment accounts) worth approximately $775,000. Her will left her real property to two of her children (neither of which was Linda) who provided a greater degree of care in the last three years of her life. The will divided her personal property equally between her five children.

The Court varied the Will to order specific gifts of $300,000 to each of the children who provided care in the three years of the deceased’s life, with the remainder of be divided equally between the five children. This would recognize the contributions of the children when the family was a joint economic unit (which included the acquisition of the real property), but also take into account the “significant sacrifices” made by the of the two children who provided end of life care.

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.