Category: Wills Variation
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Wills Variation: $5M Lump Sum Fulfils Moral Obligation to Spouse
In Picketts v. Hall, 2009 BCCA 329 the Court of Appeal held that the bequest of periodic payments to provide a surviving spouse with the standard of living enjoyed while the testator was alive may not be adequate; the moral obligation to a spouse may greatly outweigh the legal obligation to provide maintenance for basic […]
Vancouver Estate Law: Dividing an Estate in a Blended Family
Dividing an estate in a blended family can be complicated. What happens if your mother becomes incapacitated, and your stepfather then enters a new common-law relationship with someone else? When your stepfather dies, is your mother still entitled to a share of the assets she and your stepfather accumulated during their marriage? Can your stepfather […]
Wills variation: Legal and Moral Obligations to Second Spouse
In BC, a will-maker owes both legal and moral duties to a spouse, including a second spouse. A will built mainly to keep the estate away from that spouse can be varied. In Westman Estate, a court found provision for a long-married, incapacitated second spouse unfair and ordered an equal split. The principle issue in […]
Wills Variation: Date for Adequate Provision in a Will
In a BC wills variation claim, the court measures whether a will made adequate provision as of the will-maker’s date of death, not the trial date. Changes in a claimant’s circumstances after death are generally ignored, unless those changes were reasonably foreseeable when the will-maker died. The Court of Appeal in Eckford v. Vanderwood, 2014 […]
Competing Wills Claims of a Second Spouse and Stepchildren
Eckford v. Vanderwood, 2014 BCCA 261 raises the oft seen competing wills claims of adult independent children of a first marriage and a second spouse. In this case, a common law wife was left out of her husband’s will. She asked the court to change her husband’s will so that she would receive all of […]
Using WESA to cure deficiencies in a will
In Hadley Estate (Re), 2016 BCSC 765, the British Columbia Supreme Court was asked to use the discretion conferred by the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”) to cure deficiencies in a will – in other words, to relieve against the consequences of non-compliance with testamentary formalities. The specific issue was […]
Can You Leave Your Estate to Friends? Legal Considerations for Non-Family Beneficiaries
Quick answer: Yes. In British Columbia you can leave your estate to friends, charities, or anyone you choose — there is no rule that family must inherit. The only real limit is that a spouse or a child (natural or adopted) can ask the court to vary the will under section 60 of the Wills, […]
Can You Vary a Will Depending on an Independent’s Financial Needs?
The court will be hesitant to interfere with a competent will maker’s testamentary authority where the will provides equal distribution of the estate between independent adult children. This case demonstrates whether you can vary a will based on an independents financial needs. Can you vary a will based on an independent child’s financial need? In […]
Tataryn: BC’s Leading Case on Wills Variation Act
Testator’s legal and moral duties inform will variation Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 is the leading case on British Columbia’s Wills Variation Act, which was replaced by the Wills, Estates and Succession Act. This legislation gives courts broad discretion to determine whether the testator has made “adequate provision” for their spouse and […]
Can a Will be Varied Under Moral Obligation? How Courts Balance Family Claims
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 […]