Wills Variation: The Courts Could Change Your Will After Your Death
Written by: Vicki Xu (Articled Student)
The law generally respects a will-makers’ testamentary freedom to distribute their estate however they wish after death. However, in BC, courts have the power to order that a will-maker will be disregarded and his or her estate to be distributed in a manner the court deems fair. This can happen if the will-maker’s spouse or child is disinherited.
A disinherited child or spouse has the right to challenge the will-maker’s will at court. This is known as a wills variation claim.
Children who are eligible to make a wills variation claim include biological children, who have not been adopted by third parties, and adopted children. Step-children, children for whom the will-maker stood in loco parentis and biological children who have been adopted by third parties do not have the standing to bring a wills variation claim.
Both married spouses and common-law spouses are able to make wills variation claims. However, married individuals cease to be spouses if separation occurs, even if they are not yet divorced. Sometimes, a will-maker may die leaving more than one spouse. For example, an individual may be married to one person with no intention to separate but living in a marriage-like relationship with another. In such cases, both spouses are able to bring a wills variation claim.
In a wills variation claim, the claimant must satisfy the court that the will-maker failed to make adequate provision in the will for the proper maintenance and support of the claimant. The court may then order for the claimant to receive an amount from the estate that is “adequate, just, and equitable” in the circumstances.
The will-maker’s duty to make adequate provision for the proper maintenance and support of his or her spouse and children can be broken down into two components: legal obligations and moral obligations. Legal obligations are assessed by considering the legal rights of the claimant against the will-maker if he or she is still living, whereas moral obligations are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.
The sufficiency of the provision made for the Claimant depends on the extent of the legal and moral obligations owed to the Claimant by the will-maker. One of the factors in determining the will-maker’s moral obligations is the standard of living provided to the claimant by the will-maker. If the will-maker has allowed the claimant to become accustomed to a certain standard of living, the will-maker may have a moral obligation to provide for the claimant such that this standard of living can be maintained. In Wilson and Lougheed (2010 BCSC 1868), the court took into account the will-maker’s history of treating her daughter generously, the parties’ lavish standard of living, and the daughter’s bona fide expectation that she would be securely provided for by the will-maker, among other things, and ordered to vary the will of the mother. The daughter’s share was increased to 5.5 million from an estate worth approximately 20 million.
If a will-maker chooses to disinherit a spouse or child despite the risk of his or her will being challenged after death, the will-maker may consider attaching a memorandum to the will stating the reasons for disinheritance. This memorandum can be used to clarify the will-maker’s rationale if a wills variation claim is ultimately brought. However, in order to prevent a wills variation claim from succeeding, the will-maker’s reason for disinheritance should be “valid and rational”. If the will-maker’s reasons are not valid and rational, he or she may want to consider distributing his or her wealth through other estate planning devices that are not subject to variation.
Below are a few examples of reasons for disinheritance that would likely be ineffective:
There is a waiver within the marriage or cohabitation agreements waiving the right to bring a wills variation claim.
It is common in the will-maker’s culture for the entire estate to be inherited by one’s son.
The disinherited spouse is the will-maker’s second spouse and the will-maker wishes to leave the entire estate to his or her child from a previous marriage.
The disinherited child is a disappointment.
The lawyers at Henderson & Lee frequently handle estate planning and wills variation cases. We can help devise an estate plan that is tailored to your needs and circumstances. Please feel free to contact our office at (604) 558-2258 to book an initial consultation to discuss your case.