Varying a Will vs Setting It Aside in BC

Many people confuse two different claims. A wills variation claim treats the will as valid and asks the court to change it because it is unfair, and only a spouse or child can bring one. Setting a will aside, for example for lack of capacity or undue influence, makes the whole will invalid.

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• Will Disputes Lawyers in BC

Full transcript

Okay, and what is the single most common misunderstanding you hear on a first call? Misunderstanding for wills variation claims, I would say maybe who has standing, who is actually able to apply to vary a will under wills variation. But this is to separate from different claims of setting aside a will versus varying a will, because to set aside a will for the basis of undue influence or lack of capacity, if you’re successful, you actually invalidate the entire will and you’re not varying anything. Whereas for a Wills Variation Act claim, we are looking at the will presumed to be valid and we’re varying it just because it’s unfair.

So for a will where you are not a spouse or child to the will-maker, you cannot set aside the will for fairness reasons only. You have to look to see whether or not the will-maker had capacity to do it or was under undue influence in order to set it aside. So just different ways of getting at what the result is for what they’re looking for and whether or not all actions are actually available to that person or not.

General information, not legal advice.