Wills Variation Act in British Columbia

The Wills Variation Act 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.

In this comprehensive article, we will dive into the basics of the Wills Variation Act in British Columbia and explore the issue of disinheritance in detail.

If you believe that you have grounds for contesting a will under the Wills Variation Act 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.

BC Wills Variation Basics

The Wills Variation Act in British Columbia provides a mechanism for certain individuals to contest 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.

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.

Only the surviving spouse and children of the will-maker may apply for a variation of a will under the Wills Variation Act 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.

What is “adequate, just and equitable” provision in a Will?

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 Tararyn 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: legal obligations and moral obligations.
  • Legal obligations are those which the law would impose on a person during his or her life were the question of provision for the claimant to arise.
  • Moral obligations are based on society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.
  • 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.

Considering 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 WESA 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”).

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. Contemporaneously 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 Tararyn?

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. If 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, then they are difficult to reconcile with the fundamental precepts of Tataryn and the search for contemporary justice in the circumstances.

Will Variation Act Final Thoughts

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.