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.