Wills Variation Claims (16:VII)

A. Application Under the Act

WESA gives the court the power to vary a will. Only the spouse of the will-maker or the will-maker’s children can commence an action to vary a will. However, it should be noted that in the situation of a common law spouses, one spouse can unilaterally terminate a relationship and thereby remove the will from the variation provisions in WESA. On the other hand, for married spouses, the spousal relationship can only be terminated by divorce. Please see Chapter Three: Family Law for more information regarding divorces. The limitation period for commencing an action to vary a will is 180 days from the grant of probate, per s 61(1)(a).

A wills variation action is commenced by a claim that the will-maker failed to “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children” (WESA, s 60).

When determining what constitutes adequate provision in a will, courts have considered the following:

• actual need, which varies with age and dependency;
• justifiable expectation based upon a dependency upon the will-maker or an actual contribution made by the claimant to the will-maker’s estate;
• will-maker’s intention and reasons for making his or her will; and
• the size of the will-maker’s estate.

See Lukie v Helgason & Lukie (1976), 26 RFL 164 (questioned) and Newstead v Newstead Estate (1996), 11 ETR (2d) 236 (BCSC) for detailed discussions of the above factors.

The Supreme Court of Canada decision in Tataryn v Tataryn Estate (1994), 93 BCLR (2d) 145 provides a different focus for the determination of a wills variation claim. This is the leading authority in British Columbia on wills variation. The court considered the following factors in deciding what constitutes an “adequate, just, and equitable” provision in a will:

• the will-maker’s legal obligations – maintenance and property allocations which the law would support during the will-maker’s lifetime; and
• the will-maker’s moral obligations – society’s reasonable expectations, based on community standards, of what a judicious person would do in the circumstances.

In the more recent case of Dunsdon v Dunsdon (2012) BCSC 1274 (CanLII) [Dunsdon], the court provides a list of overlapping considerations that "have been accepted as informing the existence and strength of a testator's moral duty to independent children:

• Relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other
• Size of the estate
• Contributions by the claimant
• Reasonably held expectations of the claimant
• Standard of living of the testator and claimant
• Gifts and benefits made by the testator outside the will
• Testator's reasons for disinheriting
• Financial need and other personal circumstances, including disability of the claimant
• Competing claimant and other beneficiaries"

As the court notes in Dunsdon, “The concept of adequate provisions is a flexible notion and is highly dependent upon the individual circumstances of the case. The adequacy of a provision is measured by asking whether a testator has acted as a judicious parent or spouse, using an objective standard informed by current legal and moral norms. The considerations to be weighed in determining whether a testator has made adequate provisions are also relevant to the determination of what would constitute adequate, just and equitable provisions in the particular circumstances.”

Where the size of the estate allows, surviving spouses and children are entitled to an equitable share under WESA even in the absence of need.

The court may consider the applicant’s character or conduct, and variation may be refused on this basis (WESA, s 63(b)). If the estate is large and the spouse or children were not mentioned in the will, or they think they were inadequately or unfairly provided for, they should consult a lawyer. LSLAP cannot assist clients with wills variation claims.

NOTE: In a decision of the BC Supreme Court, Ward v Ward Estate, 2006 BCSC 448, it was held that a marriage agreement that purported to bar claims under the Wills Variation Act was not determinative of the issue.

B. Definition of Spouse in WESA

The definition of spouse in s 2 of WESA reads:

(1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(a) they were married to each other, or (b) they had lived with each other in a marriage-like relationship for at least 2 years.

(2) Two persons cease being spouses of each other for the purposes of this Act if, (a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or (b) in the case of a marriage-like relationship, one or both persons terminate the relationship.

(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation, (a) they begin to live together again and the primary purpose for doing so is to reconcile, and (b) they continue to live together for one or more periods, totalling at least 90 days.

(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.

NOTE: See Gosbjorn v Hadley 2008 BCSC 219 for a list of factors used by the courts to determine if there is a marriage-like relationship. More recently, see the discussion in Connor Estate, 2016 BCSC 1934.

NOTE: In B.H. v J.H., 2015 BCSC 1551, the BC Supreme Court varied the husband’s will so that the wife, who was separated from but who has not divorced the husband, was entitled to part of the husband’s estate. This significantly deviated from what the wife would have received if they had divorced immediately before the husband’s death.

C. Exclusion of Potential Beneficiaries

A will-maker who wishes to exclude a spouse or child should state precisely why the person is being “disinherited,” or why they are less than “adequately” provided for. LSLAP’s policy is not to draft a will where the will-maker wishes to exclude a spouse or child, or unevenly divide the assets between children. Such clients should be referred to a private lawyer, unless the supervising lawyer gives approval.

As per section 60 of WESA, the court is not bound by the will-maker’s decision and reasons, but will consider them. Therefore, the will-maker is not assured of success in his or her attempt to exclude or less than adequately provide for a spouse or child. For more detail, see above – Part A.

The chances of the will-maker’s will being upheld will be greater if the will-maker provides reasonable and rational reasons for the exclusion. For example, where the will-maker has already given the person substantial benefits during her or his lifetime, where the reason is based upon the person’s character, or on the relationship between the will-maker and the potential claimant, the court will be more likely to uphold the will-maker’s wishes.

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