By Lam Legal | Reviewed by Ada P. Lam
Let’s say a parent leaves almost everything to one child. Or a spouse is left out of a will entirely. Sounds like a recipe for family drama, doesn’t it?
But does the will always get the final say?
Surprisingly, no.
In British Columbia, a spouse or child may be able to ask the court to change a will if it does not make adequate, just and equitable provision for them. These are known as wills variation claims and are governed by the Wills, Estates and Succession Act (WESA).
But being unhappy with a will isn’t enough. Courts look at the deceased person’s legal and moral obligations, the circumstances of the family, the reasons for the estate plan and the available evidence.
There is also an important deadline to challenge a will. A wills variation claim generally has to be started within 180 days after probate is granted.
What does it mean to vary a will in BC?
When someone makes a will, they generally have considerable freedom to decide who receives their estate.
But that freedom is not unlimited.
Under WESA, the Supreme Court of British Columbia can change the distribution of an estate if the will does not make adequate, just and equitable provision for the deceased person’s spouse or children.
That does not mean a judge simply replaces the deceased person’s wishes with what the judge considers fair. The court instead asks whether the deceased adequately met their legal and moral obligations to their family.
This is different from challenging a will’s validity, which requires valid legal reasons for questioning whether the will reflects the deceased’s intentions. A wills variation claim generally assumes the will is valid but argues that an unfair distribution of the deceased’s estate should be changed.
Who can bring a wills variation claim?
Wills variation claims are generally available only to the deceased person’s spouse or children.
A spouse can include a legally married spouse or a common law spouse – someone who lived with the deceased in a marriage-like relationship for at least two years immediately before death. In some circumstances, more than one person can qualify as a spouse.
Biological and adopted children can also bring claims, including adult children who are financially independent.
Grandchildren and stepchildren who were not legally adopted generally cannot bring a wills variation claim simply because they expected to inherit.
That makes legal standing one of the first questions in any potential case: Is this person legally entitled to bring the claim? Unlike some validity challenges, a direct financial interest alone does not qualify someone to bring a wills variation claim.
What does “adequate, just and equitable” mean?
There is no simple formula.
The court considers what the deceased person (the will maker) should reasonably have provided based on both legal obligations and contemporary moral standards.
For a surviving spouse, legal obligations may include what that spouse could reasonably have received under family law if the relationship had ended before the deceased’s death.
Moral obligations are broader. For adult children, courts may consider the size of the estate, the financial circumstances of the claimant and other beneficiaries, the parent-child relationship, previous gifts or financial assistance and the deceased person’s reasons for treating family members differently.
A wealthy adult child is not automatically barred from making a claim, and a financially struggling child does not automatically succeed. The court looks at the overall family circumstances, including each claimant’s financial interest and the will maker’s wishes.
Does estrangement prevent an adult child from challenging a will?
Not necessarily.
Suppose a father and daughter have barely spoken for years and the father leaves the daughter out of his will.
The estrangement may be relevant, but it does not necessarily end the analysis.
The court may ask who caused the breakdown in the relationship, whether the parent pushed the child away and whether the deceased person’s reasons for disinheritance were accurate and rational.
As we saw in Enes v. Dancey, the existence of estrangement does not tell the whole story. The circumstances behind the estrangement, and what happened in the relationship afterward, can matter.
How does a court decide whether to change the will?
The analysis can broadly be understood in two stages.
First, the court considers whether the will adequately met the deceased person’s legal and moral obligations to the spouse or child making the claim.
If it did not, the court then decides what provision would be adequate, just and equitable.
The court has broad discretion. It may consider the size of the estate, competing claims from other family members, the claimant’s circumstances and the deceased person’s reasons for the estate plan.
A successful wills variation claim therefore does not automatically result in an equal division of the estate. The court can vary the will by the amount it considers appropriate in the circumstances.
What matters when gathering evidence for a wills variation claim?
Wills variation cases can turn heavily on evidence.
Relevant evidence may include the will itself, written reasons left by the deceased, emails, financial documents, witness statements, previous gifts, jointly owned property, insurance proceeds and marriage or cohabitation agreements.
Witness testimony can help establish family relationships and the will maker’s intentions. In separate validity challenges, medical evidence and a previous will may also be relevant.
For example, if a will says that a child received less because the parent had already provided substantial financial assistance during their lifetime, evidence of those gifts may be important.
Likewise, if a will says that a child abandoned the parent but text messages show repeated attempts by the child to maintain the relationship, that evidence may affect how much weight the court gives the deceased person’s stated reasons.
How do you start a wills variation claim in BC?
When and how a claimant starts proceedings depends on the type of claim. To start a wills variation claim in British Columbia, the claimant must file a Notice of Civil Claim in the Supreme Court of British Columbia.
The claim sets out the relevant facts, the legal basis for the requested variation and the relief being sought. The parties then exchange relevant evidence as the proceedings move forward.
Not every dispute proceeds to trial. The parties may negotiate a settlement directly or through their lawyers, or participate in mediation to try to resolve their differences.
Mediation is often faster and less expensive than proceeding to trial. Negotiations can also result in a formal settlement agreement that resolves the claims and helps prevent further disputes over the same issues.
Estate litigation lawyers can also explain legal fees, provide legal guidance and identify other legal avenues for resolving disputes.
If the parties cannot reach an agreement, the dispute may proceed to trial, where the court will consider the evidence and determine whether the will should be varied.
How long do you have to bring a wills variation claim in BC?
Timing is critical.
A wills variation claim generally must be started within 180 days after the grant of probate under BC law, or after a foreign grant is resealed in BC.
The clock does not start simply because the person has died. It is tied to the grant of probate.
Because the deadline is strict, someone considering a claim should not wait until the end of the period before getting advice.
Executors also need to be careful about distributing an estate while potential wills variation claims remain outstanding.
What are the legal grounds for contesting a will in BC?
Wills variation is only one type of estate dispute. There may be other valid grounds for challenging a will, including questions about whether it was legally valid in the first place.
For example, a will may be contested on the grounds that the deceased lacked testamentary capacity, was subjected to undue influence, or did not know and approve the contents of the document they signed.
Can mental capacity, undue influence or lack of testamentary capacity make a will legally invalid?
Testamentary capacity refers to the mental ability required to make a valid will. Undue influence involves coercion that overcomes the will-maker’s free will, while fraud may involve deliberate deception in the creation of a will.
Medical records, witness testimony and other evidence about the circumstances in which the will was prepared may be important in these disputes.
Can improper execution or failure to meet formal requirements invalidate a will?
There are also legal requirements for properly executing a will. However, under section 58 of WESA, the BC Supreme Court has broad powers to recognize certain documents as valid wills even if they do not comply with all the usual formalities.
The court may ultimately uphold the challenged will if it finds that the legal requirements for validity have been satisfied.
These disputes involve different legal avenues from wills variation and may have different deadlines. For example, a two-year limitation period can apply to some types of will challenges. A legal professional can help determine which rules apply.
Common mistakes in wills variation disputes
People sometimes assume that being left out of a will means there is nothing they can do. Others assume that simply being a child guarantees them part of the estate.
Neither is necessarily correct.
Other common problems include waiting too long, assuming family negotiations stop the deadline, signing a settlement without understanding the potential claim, or starting proceedings without confirming that the claimant has standing.
Another mistake is confusing a challenge to the validity of a will with a wills variation claim. The two involve different legal requirements, and taking the wrong approach can complicate the dispute.
For example, alleging undue influence involves a different legal analysis from arguing that a will failed to make adequate provision for a spouse or child.
Executors can also create problems if they begin acting as advocates for one beneficiary rather than focusing on the proper administration of the estate.
Can an adult child challenge a will in BC?
Yes. An adult child can bring a wills variation claim even if they are financially independent.
Whether the will should actually be changed depends on the deceased person’s legal and moral obligations and the circumstances of the family and estate.
Can a spouse be left out of a will?
A person can make a will that leaves little or nothing to their spouse.
But that does not necessarily mean the distribution will survive a wills variation claim. A surviving spouse may ask the court to vary the will if the deceased did not adequately meet their legal or moral obligations.
The key point
A will matters, but in British Columbia it is not always the final word.
If a spouse or child has been left out of an estate or has received substantially less than expected, the court may consider whether the deceased met their legal and moral obligations and whether the will should be varied.
The result depends heavily on the family history, the reasons for the estate plan, competing claims and the available evidence.
And because the wills variation deadline is strict, timing matters.
If you are considering challenging a will in British Columbia, or you are an executor dealing with a potential wills variation claim, getting advice early can help you understand the claim and the deadlines that may apply.
Reviewed by:
Ada P. Lam, Principal Lawyer
Legislation:
Wills, Estates and Succession Act, SBC 2009, c 13, ss. 60–72
Supreme Court Civil Rules, BC Reg 168/2009
Key authorities:
Tataryn v. Tataryn Estate, [1994] 2 SCR 807
Lantzius Estate, 2015 BCSC 1687
Brenner v. Brenner, 2010 BCCA 553
Gibbons v. Livingston, 2018 BCCA 443
