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Difference between revisions of "Wills Variation Claims (16:VII)"

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Wills Variation Claims (16:VII) (view source)

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{{REVIEWED LSLAP | date= July 8, 2022}}
{{REVIEWED LSLAP | date= June 30, 2023}}
{{LSLAP Manual TOC|expanded = wills}}
{{LSLAP Manual TOC|expanded = wills}}


== A. Application Under the Act ==
== 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 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 section 61(1)(a) of ''WESA''.  
''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'''. See '''VIII.B. Separated Spouses''' for more information on when the spousal relationship ceases for the purposes of WESA. The '''limitation period''' for commencing an action to vary a will is '''180 days''' from the grant of probate, per section 61(1)(a) of ''WESA''.  


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).
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).
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:b) '''The will-maker’s moral obligations''' – society’s reasonable expectations, based on community standards, of what a judicious person would do in the circumstances.  
:b) '''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 ''[https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1274/2012bcsc1274.html?autocompleteStr=Dunsdon%20v%20Dunsdon%2C%20(2012)%20BCSC%201274%20&autocompletePos=1 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:
In the more recent case of ''[https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1274/2012bcsc1274.html?autocompleteStr=Dunsdon%20v%20Dunsdon%2C%20(2012)%20BCSC%201274%20&autocompletePos=1 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
* Relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other
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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.
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 and more recently in ''[https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc89/2018bcsc89.html?autocompleteStr=Lamperstorfer%20v.%20Plett%2C%202018%20BCSC%2089&autocompletePos=1 Lamperstorfer v. Plett]'', 2018 BCSC 89, it was held that a signed pre-nuptial agreement where both parties gave up any right or interest to the other’s estate was not determinative in a claim under the ''Wills Variation Act''.
:'''NOTE:''' In a decision of the BC Supreme Court, ''[https://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc448/2006bcsc448.html Ward v Ward Estate]'', 2006 BCSC 448 it was held that a signed pre-nuptial agreement where both parties gave up any right or interest to the other’s estate was not determinative in a claim under the ''Wills Variation Act''.


== B. Definition of Spouse in WESA ==
== B. Definition of Spouse in WESA ==
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:(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.
:(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 ''[https://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc219/2008bcsc219.html?autocompleteStr=Gosbjorn%20v%20Hadley%2C%202008%20BCSC%20219&autocompletePos=1 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 ''[https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1934/2016bcsc1934.html?autocompleteStr=Connor%20Estate%2C%202016%20BCSC%201934&autocompletePos=1 Connor Estate]'', 2016 BCSC 1934.
:'''NOTE:''' See ''[https://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc219/2008bcsc219.html?autocompleteStr=Gosbjorn%20v%20Hadley%2C%202008%20BCSC%20219&autocompletePos=1 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 ''[https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1934/2016bcsc1934.html?autocompleteStr=Connor%20Estate%2C%202016%20BCSC%201934&autocompletePos=1 Connor Estate]'', 2017 BCSC 978.


:'''NOTE:''' In ''[https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc325/2021bcsc325.html Boughton v Widner Estate]'', 2021 BCSC 325, the deceased had both a legal wife as well as a common law partner at the time of his death. The court confirmed that it is possible to have two spouses who concurrently meet the definition of a spouse under ''WESA'' section 2. The deceased’s estate was split equally between the two spouses.
:'''NOTE:''' In ''[https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc325/2021bcsc325.html Boughton v Widner Estate]'', 2021 BCSC 325, the deceased had both a legal wife as well as a common law partner at the time of his death. The court confirmed that it is possible to have two spouses who concurrently meet the definition of a spouse under ''WESA'' section 2. The deceased’s estate was split equally between the two spouses.
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