Family, Estates & Trusts 



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 the case Vielbig v. Waterland Estate, (1995) 1 BCLR (3d) 76, the deceased had three children from his first marriage, named Elizabeth, Thomas, and Patricia. Patricia was adopted into another family at the age of four and had little contact with the deceased. He also had a stepson from his second marriage, Preston. The deceased treated Preston’s children, Kimala and Preston Jr., as his own grandchildren. In his will, the deceased left 28% of his estate to Elizabeth, 28% to Thomas, 14% each to Kimala and Preston Jr., and 5% to Patricia. The remaining 11% was to be distributed to other relatives.

All of the bequests were made outright except the bequest to Elizabeth. The will provided that the trustee should hold back sufficient funds and purchase an indexed insurance policy that would provide Elizabeth with a lifetime annuity income of $1000 per month. The balance she would receive immediately. The deceased had told his lawyer that he arranged this because Elizabeth was not very capable of handling money.

For the last year of his life, Elizabeth had been the one who primarily cared for the deceased’s needs. During that time, he gave her USD $500 per month and transferred a car to her. She sold the car for $6,000. He also opened a joint bank account with her and she received almost $20,000 from that account when he died.

Can you vary a will based on the deceased’s intention?

Elizabeth sought to have the will varied, stating that it had been the deceased’s intention to transfer his condominium to her when he died. She swore in an affidavit that the deceased had asked her to set up an appointment with a lawyer to discuss transferring title to the condo to her and the deceased jointly, as well as to draft and execute a power of attorney in her favour over the deceased’s affairs. She said that she made the appointment but they could not keep it because the deceased was ill, and died shortly thereafter.

Both the BC Supreme Court and the Court of Appeal refused to vary the will.

The courts found that, unlike the circumstances in Tataryn v. Tataryn Estate, the deceased had no legal obligation to Elizabeth under the Family Relations Act or the Divorce Act. Elizabeth was not dependent on her father, nor did she contribute to his estate. Although she was less well-off financially than some of the other beneficiaries of the will, this was not a reason to vary the will. There is a wide range of options testators may take, any one of which might be considered appropriate in the circumstances. In this case, the deceased had testamentary capacity, and it was clear that he had given careful thought to the terms of the will. He recognized Elizabeth’s issues with money and arranged his will in such a way that she would receive monthly income. There was also no authority supporting the variation of a will where the testator had directed an equal distribution between his children, in the absence of one of them being disabled or dependent upon him.

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