In British Columbia, section 60 of the Wills, Estates and Succession Act lets a spouse or child ask the court to vary a will that fails to make adequate provision for them. A will-maker’s freedom to disinherit close family is limited, and any reasons given for disinheriting a spouse or child must be both valid and rational to carry weight.
The Wills Variation in British Columbia allows spouses and children to contest a will in certain circumstances, ensuring that they are provided for even if they have been unfairly left out. But what if a will-maker has disinherited a family member or treated beneficiaries unequally? Inconsistency can arise in determining the will-maker’s reasons for doing so, and understanding the nuances of the act is crucial for anyone planning their estate or who may be a potential beneficiary.
If you believe that you have grounds for contesting a will under the Wills Variation in British Columbia, or if you are planning your estate and want to ensure that your wishes are carried out, our experienced estate law attorneys at Onyx Law Group are here to help. Contact us for a free consultation today.
In this article, we will cover the basics of the Wills Variation in British Columbia and explore the issue of disinheritance in detail.
What Is the Wills Variation?
The Wills Variation in British Columbia provides a means for certain individuals to challenge a will if they have been unfairly left out. Under Section 60 of the Wills, Estates and Succession Act (WESA), the court may vary a will if it does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children. The law ensures that testamentary freedom (the right to distribute assets as one wishes) is balanced with legal and moral obligations to dependents.
If a will does not provide for the needs of the spouse or children of the deceased, they may bring a claim for variation to the court. The court has the power to order that adequate, just, and equitable provision be made for them out of the deceased’s estate.
Additionally, only the surviving spouse and children of the will-maker may apply for a variation of a will under the Wills Variation in British Columbia. The act does not provide for other family members, such as siblings or parents, to contest a will.
If the court decides to vary a will, it may order a new distribution of assets to provide for the spouse or children in a way that it considers adequate, just, and equitable. The court will consider a variety of factors in making its decision, including the size of the estate, the needs of the spouse or children, and the testamentary intentions of the will-maker.
Who Can File a Wills Variation Claim in BC?
Under Section 60 of WESA, only the spouse (including common-law spouses in a marriage-like relationship for at least two years) and biological or legally adopted children of the deceased can file a wills variation claim.
Unlike some other provinces, BC does not allow siblings, parents, or stepchildren (unless legally adopted) to contest a will under this law. While this law is designed to make sure that dependents receive adequate support, it also respects the will-maker’s autonomy within reasonable limits.
How Do You File a Wills Variation Claim in BC?
Filing a civil claim in the Supreme Court of British Columbia is the formal process for initiating a Wills variation claim. If you believe you have grounds to contest a will under the Wills Variation, the first thing you need do is to consult an estate lawyer. We have a team of experienced estate lawyers at Onyx Law Group every ready to take you through this complex process. But you need to act fast and contact us to avoid losing the right to file a claim because you couldn’t meet up with the deadline.
The next is to gather all necessary evidence proving your claim, such as medical records, bank statements, and any other documents that may be relevant to your claim. Note that the evidence you need will vary based on the grounds for contesting the will. For example, if your challenge is based on a lack of testamentary capacity, you may need medical records or expert testimony to show that the deceased was not of sound mind when they made the will.
The next step is to file a Wills variation claim in BC Supreme Court. The claim is filed against the estate’s executor, who must respond with a defense. This step is important because it preserves your right to challenge the will and informs the executor that the estate distribution is being contested.
After filing your claim, you will notify the executor and all estate beneficiaries of your legal action. This step offers transparency and the opportunity for them to respond. It is also a legal requirement to serve notice and it is important that notice is served promptly to avoid unnecessary delays.
Finally, you will need to attend mediation attempts, but if no settlement is reached, the case goes to trial, where a judge decides whether to vary the will.
How Does the Court Determine If a Will Is “Adequate, Just, and Equitable?”
WESA s. 60 refers to “adequate, just and equitable” provision – but what does that mean? Tataryn v. Tataryn Estate is the leading case and the governing authority on BC Wills variation. In the Tataryn case (see here for our BC estate litigators discussion of the facts and outcome), the Supreme Court of Canada set out the following principles:
On an application to vary a will, the Court must ask itself whether the Will makes adequate provision for the claimant and if not, order what is adequate, just and equitable, in the circumstances. These are two sides of the same coin.
The phrase “adequate, just and equitable” must be viewed in light of current societal norms, of which there are two. The first are legal obligations that the law would impose on a person during his or her life were the question of provision for the claimant to arise. The second are moral obligations which are based on society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. Also, note that legal obligations take precedence over moral obligations.
Ultimately, testamentary autonomy must yield to the interests of spouses and children, but only to the extent necessary to provide what is adequate, just and equitable in the circumstances.
What Are the Grounds for Contesting a Will in BC?
While the law recognizes testamentary freedom, there are several legal grounds reasons to contest a will. These grounds are provided by the Wills, Estate, and Succession Act and they include:
- Failure to Provide Adequate Support – If a will-maker has unfairly disinherited a spouse or child, the court may intervene to ensure fairness.
- Lack of Testamentary Capacity – If the deceased person was not of sound mental capacity when making the will, it may be declared invalid.
- Undue Influence – If a beneficiary pressured or manipulated the will-maker into making changes, the will could be contested.
- Fraud or Forgery – If there is evidence of fraudulent activity, such as falsified signatures or forged documents, the will may be overturned.
- Ambiguous or Improperly Executed Wills – If the will does not meet legal requirements or has unclear wording, the court may need to interpret or even modify it.
Furthermore, the court’s opinion on factors like testamentary capacity, undue influence, or moral obligations will determine whether a will is upheld or varied. They will then determine what is adequate, just and equitable under the law.
Can a Parent Disinherit a Child in BC?
Yes, a parent can disinherit an adult child in BC, but that decision can be challenged. Courts will examine whether the disinheritance aligns with contemporary community standards. If a deceased parent had valid and rational reasons (such as estrangement or misconduct), the court may uphold the will. However, if the disinheritance appears arbitrary or unfair, the court may override it.
How Does the Court Consider the Reasons for Disinheritance or Unequal Division of an Estate?
The will-maker’s reasons for disinheritance or for unequal division among beneficiaries may factor into the Court’s determination of what is “adequate, just and equitable” in BC wills variation proceedings. Section 62 of the Wills, Estate, and Succession Act permits the Court to accept evidence regarding the will-maker’s reasons for making certain gifts in the will or for making less than adequate provision for the wills variation claimant.
In some cases, the will-maker’s express or inferred reasons may have the effect of negating any moral obligation owed by the will-maker. The approach taken by BC Courts in relation to a will-maker’s reasons for disinheriting or providing a modest benefit only to a child starts with consideration of the Court of Appeal decision in Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213, 48 E.T.R. 209 (C.A.) (“Bell”).
What Is The Doctrine of “Valid and Rational Reasons?”
In Bell, the will-maker left a will under which she bequeathed a small gift to one adult son, nothing to her adult daughter, and left the lion’s share of her estate to her other adult son. Concurrently with making her will, the will-maker wrote a separate letter purporting to explain the unequal treatment of her children, and in particular the disinheritance of her daughter.
The daughter’s application to vary her mother’s will was refused. In Bell, the Court of Appeal held that where financial need is not a factor, if the court finds that the will-maker’s reasons purporting to explain a disinheritance are valid and rational, the will-maker’s moral duty in respect of that child is negated.
The Court held that the burden then shifts to the wills variation claimant to show that the reasons acted upon by his or her parent were false or unwarranted. The Bell analysis was applied in Kelly v. Baker (1996), 82 B.C.A.C. 150, 15 E.T.R. (2d) 219 (C.A.) (“Kelly”), another case in which the BC Court of Appeal concluded that the will-maker had “valid and rational reasons” for disinheriting the claimant. The Court in Kelly stated that the will-maker’s reasons for disinheriting a child need not be “justifiable” and that the law merely requires that the reasons are valid, meaning based on fact, and rational in the sense that there is a logical connection between them and the act of disinheritance.
Inconsistency Between BC Case Law and Tataryn?
As discussed at the outset of this post, the fundamental principle of Tataryn is that a will-maker’s moral duty must be assessed objectively from a standpoint of what a judicious parent would do in the circumstances, by reference to contemporary community standards.
A thorny issue arises from the model of inquiry endorsed by Bell and followed in Kelly (i.e., the doctrine of valid and rational reasons), as that approach effectively precludes an assessment of whether the will-maker’s reasons are objectively justifiable from the standpoint of the contemporary judicious parent of Tataryn.
Suppose the decisions of Bell and Kelly mean that the applicable test is whether a will-maker has valid (i.e. factually true) and rational (i.e. logically connected to the disinheritance) reasons for disinheriting a child, even where the reasons are unworthy of an objectively judicious parent based on contemporary standards. In that case, they are difficult to reconcile with the fundamental precepts of Tataryn and the search for contemporary justice in the circumstances.
What Are the Legal Costs and Timeframes for Contesting a Will?
It is important to note that a Wills variation claim is a civil claim, which means it follows specific legal deadlines and procedural requirements. Generally, the timeline for starting a Wills variation claim is within 180 days of the day the will is probated (i.e., processed as valid) in the Supreme Court of British Columbia. While the six-month limitation period does not begin to run until probate is issued by the probate registry, you don’t have to wait until probate is granted to start a Wills variation claim. It is important to note that if you do not bring a Wills variation claim within the six-month period, you lose the right to bring a claim.
Another time period is the two-year limitation period which applies if you are contesting a will on the grounds of mental incapacity, undue influence, or the other reasons outlined above. Here, you don’t need to be a spouse or a child who is unfairly disinherited. This limitation period starts running the very moment the potential claimant discovers, or reasonably should have discovered, facts that give rise to the claim.
Now, once you’ve determined that you’re within the limitation period to contest a will, an important consideration you need to make is the cost of proceeding. Legal costs vary widely depending on the complexity of the case, the lawyer’s experience, and the expected duration of the legal process. Some lawyers work on a contingency basis (taking a percentage of the estate if successful), while others charge hourly rates ranging from $200 to $500 per hour. Also, if the challenge is successful, legal fees may be covered by the estate. On the other hand, if unsuccessful, the claimant may be responsible for their own costs.
Need Guidance on Wills Variation Claims?
In BC, the Wills Variation allows a deceased’s spouse or child to contest a will if they believe it doesn’t provide adequate provision for their proper maintenance and support. Common grounds for contesting a will include lack of testamentary capacity, undue influence, fraud, improper execution, or unfair distribution under British Columbia’s Wills, Estates, and Succession Act (WESA). To successfully file a claim, you will need to consult an estate lawyer, gather all your evidence, file a wills variation, notify the executor and attend mediation attempts.
Understanding the act and its grounds for contesting a will is essential for anyone planning their estate or who may be a potential beneficiary of a will. Seeking the guidance of a knowledgeable lawyer can help you navigate the complex process of contesting a will or planning your estate to ensure that your wishes are carried out. With the right legal advice, you can ensure that you and your loved ones are properly provided for in the future.
At Onyx Law Group, our experienced estate litigation lawyers have a deep understanding of British Columbia’s Wills Variation and the latest court precedents. We combine legal expertise with a strategic, client-focused approach to maximize the success of your claim. So, contact us today for a free consultation.
Frequently Asked Questions
Who can bring a wills variation claim in BC?
Only a spouse or a child of the will-maker. Section 60 of the Wills, Estates and Succession Act (WESA) limits standing to the deceased’s spouse — married, or in a marriage-like relationship of at least two years — and their children, including independent adult children. Parents, siblings, grandchildren, and stepchildren who were not adopted cannot bring a variation claim, however unfairly they feel they were treated.
Can a will-maker disinherit a spouse or child in BC?
They can try, but the court can override it. Testamentary freedom is real, yet section 60 lets a court vary a will that does not make adequate, just, and equitable provision for the proper maintenance and support of a spouse or child. In doing so the court weighs both legal obligations and the will-maker’s moral duty to those family members, the framework set by the Supreme Court of Canada in Tataryn v Tataryn.
Do the will-maker’s reasons for disinheriting matter?
Yes, and the court examines them closely. Reasons a will-maker gives for cutting out a spouse or child are considered, but they carry weight only if they are valid — meaning factually true — and rational — meaning logically connected to the decision to disinherit. A written statement of reasons can help, but it is not the last word; a reason built on a mistaken belief or on nothing rational can be set aside.
Is there a deadline to bring a wills variation claim?
Yes, and it is strict. Under section 61 of WESA, a wills variation proceeding must be started within 180 days from the date probate is granted, and the claim then has to be served on the personal representative within the time the Rules allow. Miss the window and the right to vary the will is generally gone, so early legal advice matters.
Does wills variation apply if there is no will?
No. Variation under section 60 applies only to a valid will. If someone dies without a will, their estate is distributed under the intestacy rules in WESA instead, which set fixed shares for a spouse and children. A spouse or child who feels short-changed by a will uses the variation route; an intestacy is governed by the statutory scheme, not by a variation claim.