In the midst of the real estate mania in BC there is a corresponding increase in wills variation claims. With property values skyrocketing, many family estates have become significant enough to warrant the intervention of the courts when things do not go as expected.

Varying a will is a complex, costly and time-consuming process that can have an emotional toll. The Wills, Estates & Succession Act (“WESA”) gives the BC courts relatively broad jurisdiction to “vary” (which means change) the distribution of assets from what a person has stated in their will.

Broad Test

Section 60 of WESA allows for variation of a will where: “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”.

If upon hearing an application, the court is satisfied that this is the case then it may make such changes to the distribution in the will as the court thinks are “adequate, just and equitable in the circumstances”.

what happens in court

Broad language of this sort can stoke the fires of litigation as there is a large range of possible outcomes to variation claim. Rising estate values add fuel to this fire by injecting significant financial incentives to litigate when a child or spouse feels they have not been adequately provided for.

Operating as an overarching limit on this discretion is the will-maker’s intention. Judges tend to place a great deal of weight on a person’s last wishes and are reluctant to overrule them. If the will-maker has met what society says is their legal and moral obligations, courts will be less prone to upset their wishes. However, when the legal obligations are grey—such as they are with the language of “adequate provision” in WESA section 60—judicial discretion muddy the waters. Not all judges will agree on what “adequate provision” means, just like not all parents will agree.

Whether a variation claim will be successful and the probable outcome of that claim are fact-specific situations that generally require legal advice. If the court finds that the reasons for disinheriting a child or spouse are not valid or rational, the court can change the distribution of the assets and/or funds given in the will. It is only when these claims are backed up with evidence that a judge will consider making a variation.

Just because someone believes they or their family is being treated unfairly in a will, it does not necessarily mean that the courts will agree. There are circumstances where a court will determine that the will-maker did not have a moral obligation to provide for an adult child. Also, even if a variation claim is successful, a disinherited sibling, for example, still may not inherit equally with other siblings.

If you were disinherited by your spouse or parent in their will, you can contact a member of RDM’s Estate Litigation team for a consultation about your options. Please note these claims are time-sensitive and require you to take steps quickly, so it is important to reach out early once you have received the will of your loved one.

preventing litigation

An important step that you can take to prevent your estate entering litigation is to update your will as needed, keeping on top of changes in life circumstances and the market. For example, if your will distributes certain properties to certain beneficiaries, then a dramatic rise in the value of one of these properties may cause your will to have an unequal distribution. A court may look at this scenario and decide the distribution has not been “just and equitable in the circumstances”.

It can also be helpful to have a document where you explain the reasons for choosing to distribute your estate the way you have in the will. This will give a better understanding to both the beneficiaries and the judge who may be ultimately determining how to honour your wishes while upholding the law.

Having a properly prepared estate plan can help reduce the risk of a costly and difficult court battle that could end up causing irreparable damage and family rifts after you are gone. If you have questions about estate planning, contact a member of RDM’s Wills & Estate Planning team today for a consultation.