The Wills, Estates and Succession Act ("WESA") gives the Supreme Court of British Columbia broad powers to vary the Will of a deceased person if it does not make adequate provision for the proper maintenance and support of the deceased's spouse or children.

For the purpose of these provisions, spouses include married, common law and same sex spouses and children includes both minor and adult children.

Will variation proceedings are common in BC, especially in blended family situations and in cases where a Will treats children differently in terms of the benefits afforded to them. The legal costs associated with a wills variation claim are often directed by the Court to be paid out of the estate which can unfortunately have the effect of encouraging litigation.

Factors the court will consider on a variation application

The Court will look at a broad range of factors including the personal and financial circumstances of the parties and the nature of the relationships between the deceased, the applicant and the beneficiaries named in the Will.

A Court will also consider the legal and moral obligations of the deceased. Legal obligations include, for example, what a surviving spouse might have been entitled to receive if there had been a breakdown of the relationship, and whether the deceased had a continuing obligation to support a minor or disabled child. Moral obligations are more nebulous and are determined with reference to contemporary societal standards and expectations as to what a reasonable and judicious spouse or parent would do in the circumstances.

The Court will also take into account the principle of testamentary autonomy which supports the right of an individual to direct how his or her property should be distributed on death. Based upon this principle, if the Will provides for a surviving spouse or child in a way that is within a reasonable range of what might be considered adequate, the Court may lean in favour of upholding the Will. It also means a Court will give consideration to gifts to third parties and try to respect them to the extent that it is feasible to do so given the value of the estate and the competing interests of family members.

Powers of the court

If the Court determines that a Will does not make adequate provision for the proper maintenance and support of a deceased's spouse or child, it can override the terms of the Will and impose a distribution of the estate assets on whatever terms it considers appropriate.

Because the powers of the Court to vary a Will are broad and the decisions of the Courts are often highly fact driven, it can be difficult to predict whether a particular Will would be upheld if an application to vary it is made.

Avoiding the possibility of a variation application

Pursuant to WESA, a Court can only vary the terms of an individual's Will. Accordingly, under current law, a Will variation claim by an adult child can be avoided by ensuring that assets do not pass under the individual's Will and do not form part of his or her estate.

Ways to achieve this include making a gift during one's life, putting an asset in joint names with an intended beneficiary, having insurance proceeds and assets held in registered accounts pass by virtue of beneficiary designations, and transferring assets to a trust created while one is alive. Many of these options can also achieve other estate planning goals such as a reduction in income tax and probate fees payable on death, and increased confidentiality in respect of the estate plan and the assets of the deceased. However, despite the potential benefits, none of the planning opportunities described should be undertaken without proper legal and tax advice.

The analysis of the law applicable to claims by spouses under the Will variation provisions of WESA is more complex. Legal advice should be sought if this is a concern.

Conclusion

The lawyers in our estates, trusts and wealth management group would be pleased to discuss this legislation and available planning opportunities with you.

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