Wills Variation

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Vancouver estate lawyers who specialize in wills variation claims know that a spouse, son and daughter has the right to challenge a disinheritance or an unfair will and hold the husband, wife or parent accountable. The most important question is, “Does the will make adequate provision for his or her maintenance and support?” A will maker can disinherit a partner or child for the right reasons, wrong reasons and sometimes no reasons at all. The law says there is a right way and a wrong way to treat a husband, wife, son and daughter in a will. Either through a negotiated settlement or after trial, the wills variation provisions of WESA protect spouses and children. At the end of it, some people have found a successful wills variation claim brings something even more important than a financial settlement, that being closure.

Who can challenge an unfair will?

Spouses and children of the deceased have the right to challenge a disinheritance or an unfair will. Spouses include both married and living together in a marriage like relationship for at least 2 years. Children include natural and adopted children, but not stepchildren.

What is the test to contest an unfair will?

The wills variation test in WESA says, “Despite any law or enactment to the contrary, 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.”

The two most important interests are “testamentary autonomy” and “adequate, just and equitable provision”. Wills variation lawyers know the court is only supposed to change the will if it did not make adequate provision for the proper maintenance and support of a spouse, son or daughter, and then only to the extent necessary to make adequate, just and equitable provision. Subject to that, the will maker’s autonomy or freedom to dispose of his/her estate is respected.

Lawyers who help people with a will challenge refer to contemporary legal and moral standards to assess “adequate” and “adequate, just and equitable” as those terms are used in the will dispute part of WESA. For spouses, legal standards can include the family property test in the FLA. For children, legal standards can include quantum meruit and unjust enrichment for unpaid contributions and work done on estate assets.

If will contest lawyers remember just one thing about moral standards, it is that it is an evolving category. Moral norms in wills variation cases will continue to evolve just as contemporary community norms continue to evolve. In the past, the courts have considered disability, expectations, financial circumstances, probable future difficulties and size of the estate in assessing moral duties. Creative will dispute lawyers will add to this list in the future.

Where do I file to dispute an unfair will?

Your wills variation lawyer must file a notice of civil claim in a Supreme Court registry. There are Supreme Court registries all over British Columbia including Vancouver, New Westminster and Chilliwack in the lower mainland; Penticton, Kelowna, Vernon, Kamloops, Salmon Arm, Revelstoke, Rossland, Cranbrook, Nelson and Golden to the East; Powell River, Williams Lake, Quesnel, Prince George, Smithers, Terrace, Prince Rupert, Dawson Creek, Fort St. John and Fort Nelson to the North; and Victoria, Duncan, Nanaimo, Port Alberni, Courtney and Campbell River on Vancouver Island to the West. There is no requirement that the notice of civil claim be filed in the same registry as the registry issuing the grant of probate.

When must I file to overturn an unfair will?

Your wills variation lawyer must file the notice of civil claim in a BC Supreme Court registry within 180 days (roughly 6 months) of the date of issuance of an estate grant, grant of administration or resealing grant. The filed notice of civil claim must be served on the estate executor or executrix within 210 days (roughly 7 months) of the date of issuance of the estate grant, grant of administration or resealing grant. The courts strictly enforce these deadlines.

Why are only estate assets part of a wills variation claim?

The wills variation provisions of WESA apply to assets passing through the estate. This can include the family home, investments and the family business. Sometimes, some assets do not pass through the estate. These can include assets in an alter ego trust, insurance policies and RSPs with a designated beneficiary, and property held in joint tenancy. The court can take these types of assets into account, but cannot directly redistribute them under a wills variation claim.

If the deceased person lives in British Columbia, the will change provisions of WESA apply to all of his/her real estate and personal property in British Columbia, and may apply to any real estate and personal property outside British Columbia. If the deceased person does not live in British Columbia, the will change provisions only apply to real estate within British Columbia, not personal property.

How do I get started?

If we can help you with a disinheritance or an unfair will, we invite you to contact our office for a free one-hour consultation.

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