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Idiot’s Guide to the Wills Variation Act


Purpose of the Act:

To provide relief to spouses and children of a deceased’s person’s (the “Deceased”) estate when they have been partially or completely disinherited by the Deceased in the Deceased’s last will.

Who has standing to apply for relief?

A spouse (married or common-law partner living in a marriage-like relationship with the Deceased at the time of death, for a period of time lasting at least 2 years prior to the death of the Deceased), and any natural or adopted children of the Deceased

What is the relief?

If the Deceased failed to make adequate provision for the proper maintenance for his or her spouse and children, the Court may vary the Deceased’s will to provide an “adequate, just, or equitable” provision under the circumstances to the claimant(s).  This varies depending on the situation, depending on the role of the claimant (spouse vs. adult independent child vs. dependent child vs. caretaker child/spouse, etc.).  The Court ultimately makes a decision based on what legal and moral obligations that the Deceased owes to his or her spouse(s) and children.

What is a legal obligation?

A legal obligation is a duty that the Deceased owed, at law, to a claimant.  The Deceased owes no legal obligation to provide for an adult independent child, but does owe a legal obligation to provide for his or her spouse, according to the matrimonial legislation of the province.  In BC, the current governing matrimonial legislation is the Family Relations Act, R.S.B.C. 1996, c-128, but there will likely be a brand new matrimonial legislation brought into the province by the end of 2011, entitled the Family Law ActVisit my blog post on the content of the new Family Law Act and how it will affect estate litigation.

Courts value legal obligations over moral obligations (owed to both spouses and children), and will only consider varying a will to address unfulfilled obligations when the legal obligations of the Deceased have been fulfilled.

What is a moral obligation?

A moral obligation is the inherent duty that the Deceased owes to a spouse or child based on the closeness of the relationship between the parties.

A moral obligation owed to a child is determined after due consideration of whether:

1.       The size of the estate is sufficiently large enough to accommodate providing an inheritance to the child after the Deceased’s legal obligations are satisfied;

2.       The Deceased inherited the whole estate of his or her predeceased spouse, and where the children of the first relationship inherited nothing or little from the predeceased parent;

3.       The child enjoyed a close relationship with the Deceased where there was an assured or implied expectation on the part of the adult child of a just inheritance;

4.       The child provided services and other assistance (including financial or emotional) to the Deceased during the Deceased’s life)

5.       The child has a disability;

6.       The Deceased’s poor treatment of the child during the Deceased’s lifetime;

7.       The present financial circumstances of the child; and

8.       Other legitimate claims.

A moral obligation owed to a spouse is determined after due consideration of the following factors:

1.        Length of marriage;

2.         Standard of living that the spouse and the Deceased enjoyed during the Deceased’s lifetime;

3.         Economic self-sufficiency of the surviving spouse following the death of the Deceased;

4.         The spouse’s contributions (financial and non-financial) to the Deceased during the Deceased’s lifetime;

5.         The life expectancy of the surviving spouse; and

6.         Other legitimate claims.

The Court then has the task of weighing the competing moral claims between all of the beneficiaries, spouse(s) and children to determine what a just, adequate, and equitable division of the Deceased’s estate would be.

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