Quick answer: Yes, a will can be varied where it fails to make adequate provision for a spouse or child. Under section 60 of BC’s Wills, Estates and Succession Act, the court can order provision that is “adequate, just and equitable.” It weighs the will-maker’s legal obligations (what the law would otherwise require) and moral obligations (what a reasonable person would do), following the framework in Tataryn v. Tataryn Estate. Only a spouse or child can bring the claim.
This was a dispute between a widow and her two stepsons regarding her deceased husband’s estate.
The background: Saugestad v. Saugestad, 2008 BCCA 38
Joan and Ragnar Saugestad married in 1992. It was a second marriage for both of them, and Ragnar had two sons from his first marriage. His first wife had passed away from breast cancer three years earlier. Joan had no children, and following the termination of her first marriage she worked as a realtor. Joan retired some five years after she married Ragnar, and they began to travel extensively. The cost of the travel was largely paid for by Ragnar, and partly paid out of his capital assets.
On Ragnar’s death, Joan received:
- two condominiums the couple owned as tenants in common
- the home they owned as joint tenants
- his pension, of around $1,350 per month
- a CPP survivor’s benefit
- the remainder of funds in Ragnar’s various bank accounts
- the benefit of Ragnar’s RRSPs
In his will Ragnar stated that although he loved Joan, he had made alternate provisions for her and so she did not require a bequest from him. Everything he bequeathed in his will went to his two adult sons from his first marriage.
This included:
- shares in a private investment company, Nistera
- an inheritance from Ragnar’s mother
- Ragnar’s interest in the condominium he owned in common with Joan
- a condominium in Florida that Ragnar solely owned
Can a will be contested under moral obligation
Joan wanted to contest the will so that she would receive 80% of Ragnar’s estate.
The trial judge followed the two-step approach set out in the Supreme Court of Canada decision in Tataryn v. Tataryn Estate. First, she addressed the obligations Ragnar would have had to Joan under the Family Relations Act (FRA) had the marriage ended in divorce, and then she considered Ragnar’s moral obligations and whether moral claims against the estate had been or could be met.
The judge accepted that the Florida condominium and Nistera would be considered family assets for the purpose of division under the FRA, but she found based on the relevant factors, such as the extent to which the property was acquired by one spouse through inheritance or gift, the date the property was acquired, and the circumstances of the spouses, that these assets should be notionally divided 80/20 in Ragnar’s favour. She found that the inheritance from Ragnar’s mother was not a family asset but, if it was, it should also be divided 80/20. Following the notional division of assets, Joan was left with around $50,000 more than she would have had from a division of family assets under the FRA.
On appeal
On appeal, Joan argued that Ragnar had deliberately arranged his affairs to prevent her from making otherwise valid claims on the estate. The Court of Appeal disagreed and accepted the trial judge’s analysis. The only change the Court of Appeal made was to give Joan Ragnar’s one-half interest in the condominium they owned together, subject to Joan assuming the entire remaining mortgage.
Ragnar recognized the moral claims of his wife and his sons, and he reasonably arranged his affairs to balance their claims.
The two-step framework courts use
When a court is asked to vary a will, it does not simply ask whether the split feels fair. It follows the approach the Supreme Court of Canada set out in Tataryn v. Tataryn Estate, [1994] 2 SCR 807, which remains the governing authority under section 60 of the Wills, Estates and Succession Act (WESA). The court works through two categories of obligation, measured as at the date of death:
- Legal obligations. These are the duties the law would have imposed on the will-maker if the relationship had ended another way — for example, the property and support entitlements a spouse could have claimed on separation. A will-maker cannot use a will to escape what the law would otherwise require them to provide.
- Moral obligations. These are society’s reasonable expectations of what a judicious person would do in the circumstances. They are softer than legal duties and depend heavily on the relationship, the size of the estate, and the conduct of the parties. An adult independent child is generally owed a moral duty but not a legal one.
The court first satisfies the legal obligations, then turns to the moral ones, and adjusts the will only so far as needed to meet them. If the will already sits within a range of outcomes that a reasonable will-maker could have chosen, the court leaves it alone. There is no single “correct” division — only a range of adequate ones.
Legal versus moral: why the distinction decides the case
The strongest variation claims combine a legal obligation with a moral one. A long-married spouse who would have been entitled to a substantial share of family property on separation carries a legal claim the court will enforce first. A financially independent adult child, by contrast, has no legal claim and must rely on the moral duty alone — which is real but more easily reduced or displaced.
Because moral obligation is judged by what a reasonable will-maker would do, the facts matter enormously: the length and quality of the relationship, whether the beneficiary contributed to building the estate, competing claims from others, and any provision already made outside the will. Assets that passed to a spouse by survivorship or beneficiary designation, for instance, are counted when the court asks whether that spouse was adequately provided for.
Who can bring a variation claim
Standing is narrow, and it decides many disputes before the merits are ever reached. Under section 60 of WESA, only a spouse or a child of the will-maker can apply to vary a will. “Child” means a natural or adopted child; it does not include a stepchild or a grandchild. A spouse includes a married spouse and a person who lived with the will-maker in a marriage-like relationship for at least two years.
This is why the relationship between the parties, rather than the wording of the will, is often the first thing to check. A stepchild who feels short-changed, however sympathetic, has no standing to vary the will under section 60, even though a biological child in the same position would. Anyone weighing a claim should confirm they fall within the spouse-or-child category before anything else.
The deadline for a variation claim
A variation claim runs on a strict clock. Under section 61 of WESA, the action must be commenced within 180 days from the date the grant of probate or administration is issued, and served on the personal representative within a further 30 days. Miss the 180-day window and the right to vary the will is generally lost, no matter how strong the underlying claim. If you think a will has failed to provide for you as a spouse or child, the date probate was granted is the number to find first.
For how these principles play out for adult children specifically, see our post on a parent’s moral obligation to an adult child, and on structuring uneven gifts, unequal division of an estate in a will.
Frequently asked questions
On what grounds can a will be varied in BC?
A will can be varied under section 60 of the Wills, Estates and Succession Act where the will-maker failed to make adequate provision for a spouse or child. The court can then order provision that is adequate, just and equitable in the circumstances. It does this by weighing the will-maker’s legal obligations and moral obligations, following the framework in Tataryn v. Tataryn Estate.
What is the difference between a legal and a moral obligation?
A legal obligation is a duty the law would have imposed anyway, such as the property and support entitlements a spouse could claim on separation. A moral obligation is society’s reasonable expectation of what a judicious will-maker would do, and it is softer and more fact-dependent. An adult independent child is generally owed a moral duty but not a legal one.
Can a stepchild vary a will under moral obligation in BC?
No. Only a spouse or a natural or adopted child of the will-maker has standing to bring a wills variation claim under section 60 of WESA. A stepchild is not included and cannot vary the will on that basis, even if the will seems unfair to them.
Does the court measure obligations at the date of the will or the date of death?
The court measures the will-maker’s legal and moral obligations as at the date of death, not the date the will was signed. This is why keeping a will current matters, because the circumstances that existed when it was written may have changed by the time it takes effect.
How long do I have to bring a wills variation claim?
Under section 61 of WESA, a wills variation action must be started within 180 days of the date the grant of probate or administration is issued, and served within a further 30 days. Missing the 180-day deadline generally ends the right to vary the will, regardless of the strength of the claim.
Disclaimer: This page is general legal information about British Columbia law, not legal advice for any particular situation. Reading it does not create a solicitor-client relationship. BC estate law changes, and the outcome of any wills variation claim depends on facts not covered here. For advice on your own situation, speak with a qualified British Columbia estate lawyer.