Family, Estates & Trusts 



Wills Variation: Changing Will After Death of Spouse

There are many factors that the court considers when a surviving spouse brings a wills variation application to change the will after the death of a spouse. In some cases, the court may vary the will to provide the surviving spouse with a larger share, even where the surviving spouse already has enough to live comfortably. But there is no automatic entitlement of a spouse to inherit from an estate – for example, if the marriage was short, or if the surviving spouse has already received assets outside the estate.

The decision of the Court of Appeal in Saugestad v. Saugestad, 2008 BCCA 38 is helpful because it discusses a number of factors the court considers when asked to change a will after the death of a spouse, including:


Ragnar and Joan Saugestad had been married for about 10 years when he died at the age of 63. It was the second marriage for both. Joan had no children of her own, but Ragnar had two sons, ages 29 and 30, from his first marriage. Ragnar’s first wife (the mother of his children) had died in 1989 after 19 years of marriage. Ragnar had built a large estate during his first marriage.

The will and assets passing outside the will

On Ragnar’s death, Joan received assets outside of Ragnar’s will: she inherited the matrimonial home as surviving joint tenant, and she also received Ragnar’s monthly pension and CPP survivor’s benefit. Ragnar’s will left Joan several motor vehicles, some furniture and artwork, RRSPs, and approximately $28,000 in various bank accounts. The will stated that the rest of Ragnar’s multi-million dollar estate was to be shared equally between his two adult sons. A clause in Ragnar’s will explained that he purposefully chose to not make Joan a beneficiary of his will. Joan was aware of Ragnar’s will and his wish that his sons receive the majority of his estate.

Surviving spouse asks court to change the will after the death of her spouse

Despite being aware of Ragnar’s wish that his sons receive the majority of his estate, Joan brought a wills variation claim to change the will after the death of her spouse. She asked for 80 per cent of her husband’s estate. Her wills variation claim was allowed, but she received a much more modest variation of the will than she asked for: at trial, the will was varied to provide her with an additional life interest in half of an investment condominium in Florida, and on appeal, the will was varied further to convert the life interest into outright ownership of the half of the investment condominium. The rest of Ragnar’s multi-million dollar estate went to his sons.

Changing will after death of spouse: Important factors in this case

Here are the key factors that impacted the court’s decision to change the will, but only modestly, in the widow’s favour:

  1. The marriage was a second marriage of moderate length, and each of the spouses had their own assets and was largely financially independent of the other;
  1. The will-maker arranged his affairs in a manner that provided reasonable financial security for his widow but otherwise chose to benefit his sons. The judge found that assets passing outside of the will were sufficient to provide for the Joan’s financial security. Joan’s total assets entering the marriage were approximately $225,000, compared to her assets of approximately $950,000 on Ragnar’s death. So even though she did not receive the majority of her husband’s estate in comparison to her stepchildren, she received significant assets upon her husband’s death. His sons, on the other hand, were only just starting out on their career paths and had no assets or real estate. The judge concluded that their financial circumstances were more deserving of moral claims on the estate than the widow’s wish to continue a lavish lifestyle.
  1. Ragnar made clear his intention that he wanted his estate to benefit his children. A will-maker’s wishes should be respected (a concept known as “testamentary autonomy”), so long as they are consistent with the objectives of wills variation legislation, called the Wills, Estates and Succession Act in British Columbia. In this case, the provisions of Ragnar’s will were within the range of options for dividing assets that is adequate, just and equitable, so the court did not disturb his wishes in any significant way (other than to provide Joan with an interest in the Florida condominium).
  1. Also very important was the fact that Ragnar’s estate was built during his first marriage, with contributions such as childcare and household management from Ragnar’s first wife. Ragnar received his first wife’s estate on her death, so his children had not yet received an inheritance from their mother. The court presumed that the first wife would have wanted her efforts to benefit her sons rather than the Ragnar’s new wife.

Take home points on wills variation action to change will after death of spouse

There are many factors that the court considers when a surviving spouse brings a wills variation application to change a will after the death of a spouse, including the respective contributions by each spouse to the accumulation of the estate; the wishes of the will-maker, balanced against the objectives of the wills variation legislation; and the strength of competing claims from children of the will-maker. On that last point, the Saugestad decision makes it clear that there is an increased moral obligation to provide for children of a first marriage where the estate was built during the first marriage and the children of the first marriage have not yet received an inheritance from the estate their parents built. The court presumes that the spouse who died first would have expected the surviving spouse to provide their shared wealth to their children as opposed to the surviving spouse’s new partner.


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