By Patrick McMurchy
The Wills Estates and Succession Act (WESA) provides the authority to a court to vary a will where the will has not made adequate provision for the deceased’s spouse or children. Although WESA made many changes to estate law, the provisions with respect to varying a will were adopted from the previous legislation, the Wills Variation Act.
In considering a wills variation action, the court will first look at the will to determine if there has been adequate, just and equitable provision for the spouse or children. The standard of what is adequate, just and equitable is to be looked at in light of “current societal norms.” The size of the estate is another important factor.
Next the court will consider if there are legal obligations that have not been fulfilled. Finally, the court will consider whether there are “moral obligations”.
Usually, legal obligations are said to be owed to a surviving spouse. A starting point is to compare the will’s provisions with what property the spouse would receive in a divorce action. The rationale being in both situations, the marriage has come to an end. But beyond that starting point, courts have considered numerous other factors including whether the marital relationship is a long term relationship, and whether it is a marriage made later in life with children from a previous marriage also being beneficiaries.
Most cases involve moral claims to a share, or a larger share, of an estate made by independent adult children. The starting point here is that a parent should treat each child equally, but there are many other factors the courts have considered in individual cases. The objective of the court is do what a “judicious parent” would do, given a range of acceptable outcomes. In addition, the court will look at gifts received by beneficiaries during the will-maker’s lifetime or passing outside the estate, the strength of claims of other beneficiaries, whether the child had an assured expectation of inheriting and what are present or future financial circumstances of the disinherited child.
Numerous cases have involved situations in which children have been estranged from the parent and disinherited as a result. These estrangement cases turn very much on the facts of the individual cases. In some cases, the disinherited child has received nothing, in others the result has been generous. Where a child has been disinherited or has received a relatively meager gift, the court is to examine if there are “valid and rational” reasons for treating that beneficiary in that way. If there are, the will should not be varied. A valid reason is one which is based on true facts; a rational reason is one logically connected to the act of disinheritance. The court does not have authority to re-write the will to bring about a result the court feels is a better one than that achieved under the terms of the will. The court’s authority to vary the will is further tempered by the requirement that the will-maker’s testamentary autonomy should be respected as much as possible.
The cases involving wills variation demonstrate how important the particular facts of each case are. It’s difficult to set down definite criteria without referring to those particular facts.
This short article is intended to give the reader a general understanding of some of the basic principles respecting the designation of beneficiaries and how that relates to variation of wills in British Columbia. It is not intended as legal advice. In estate litigation, outcomes very much depend on the specific facts of each case.