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Challenges to Wills (Wills Variation)

By Wills & Estates Team (posts)

Do You have a Claim?

As estate lawyers, we get a lot of questions about wills variation – questions like, what is wills variation? Who can vary a Will? How can you prevent your Will from being varied? And, how much would I get?

What is it?

The Courts in British Columbia have the power to vary a Will that, in the Court’s view, fails to provide “adequately, justly or equitably” for the Will-maker’s spouse or child.

Who can vary a Will?

Only spouses and children can challenge a Will. “Spouse” includes unmarried people who have cohabited with the Will-maker in a “marriage-like relationship” for at least two years. “Child” includes biological and adopted children, but does not include step-children who were not formally adopted by the Will-maker.

How can I prevent it?

There are many strategies to prevent a variation claim. These include:

  1. providing equally or close to equally for all children;
  2. updating your Will whenever your circumstances change, such as the beginning or end of a spousal-type relationship;
  3. producing and signing a note, usually called a Wills Variation Memorandum, setting out your reasons for what might otherwise appear to be the unjustified disinheritance or unequal treatment of a spouse or child (this will be discussed in a subsequent Estate News bulletin); and,
  4. using estate planning tools to reduce the amount of assets inside your estate, by way of survivorship (i.e. jointly owned assets), trusts, or beneficiary designations.

None of these strategies are entirely airtight or fool-proof, but can significantly reduce the risk of a successful variation claim against your Will.

How much would I get?

This is one of the most difficult questions to answer, because the judgments on wills variation cases result in an extremely broad range of outcomes. This is a consequence of the nature of these cases – the Court must consider all the facts, and at least some of the facts in each case are unique, so it is generally not possible to determine which fact(s) played the most significant role in the variation that was ultimately decided.

How do we assess the viability of variation claims? We start with the idea that Courts must give effect to both “legal” and “moral” claims.

“Legal” claims are the types of claims that you would have been able to bring during the Will-maker’s lifetime. The most obvious types of legal claims are those by a spouse for spousal support, or by a dependent child for child support. An adult child could have a legal claim, for instance, if he or she worked at the family business at low or no pay for many years, helping build up the Will-maker’s estate. The legal claims against the Will-maker’s estate are the starting point for determining how the Court would likely vary the Will.

“Moral” claims, which are secondary to legal claims but must also be considered, are more ambiguous. These are the kinds of claims that normally would not have legal effect, but which the judge believes ought to be recognized if the estate is large enough. There is no set-in-stone list of factors that can reduce or enhance a moral claim. As a result, there tends to be more subjectivity involved in the assessment of moral claims than legal claims.

A few examples of moral claims – a claimant who spent years caring for the Will-maker during poor health, for instance, would likely have a strong resulting moral claim. Likewise, a child who has maintained a positive relationship with the Will-maker likely has a better moral claim than a child who cut off contact with the Will-maker, and a spouse who was financially dependent on the Will-maker is likely to have a better moral claim than a spouse who is financially independent.

One final note about how much a claimant might receive – the Courts will, and do, take into consideration money or assets transferred before death or outside the estate. So, for instance, if one child receives nothing under the Will, but received significant financial assistance prior to the Will-maker’s death, or received the proceeds of a registered investment (such as an RSP) that passed outside of the estate and the Will, that financial assistance would be taken into consideration by the Court in determining whether a variation for that child is appropriate.

If your estate could face a wills variation claim, or if you think you might have a claim to vary your parent or spouse’s Will, you should consult an experienced estate lawyer.

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