Category: Wills Variation

Trevor Todd and Jackson Todd have over 60 years combined experience in Wills Variation law

The main legal principles governing an application to vary a will are summarized in Kan v. Cheong, 2024 BCSC 1633 where the statute and leading authorities are reviewed at paras. 82–83; and then summarized the factors reviewed in Dunsdon v. Dunsdon, 2012 BCSC 1274:

a) WESA has two primary objectives: 1. to ensure that adequate, just and equitable provision is made for spouses and children of a will-maker; and 2. to protect the will-maker’s autonomy. The second objective is subordinate to the first.

b) The court must first determine whether the will-maker made “adequate provision” for the plaintiff spouse or child. This is measured objectively, assessed in light of current societal legal and moral norms, and in the circumstances existing and reasonably foreseeable to the testator at the time of the testator’s death.

c) Legal norms are obligations owed to a spouse or dependent children. A testator will not generally have a legal duty to an independent adult child unless the child contributed to the estate.

d) Moral norms reflect society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards. Courts have considered several factors as informing the existence and strength of a testator’s moral duty to independent adult children including the nature and strength of the relationship between the testator and claimant; the size of the estate; any contributions by the claimant; the reasonably held expectations of the claimant; the standard of living of the testator and the claimant; any gifts and benefits made by the testator outside the will; the testator’s reasons for disinheriting; financial need and other personal circumstances, including disability, of the claimant; misconduct or poor character of the claimant; and the competing claimants and other beneficiaries. These factors tend to overlap and are not approached in isolation as independent, air-tight categories.

e) Subject to the size of the estate and the absence of circumstances that may negate a moral obligation, a testator should make provision for both a spouse and children, but in any particular situation there may be a number of ways of dividing the assets which are adequate, just and equitable. Provided the testator has chosen an option within the range, the testator’s autonomy should be respected and the will should not be disturbed.

f) A moral duty may be negated where the testator has just cause, consisting of objectively valid and rational reasons to disinherit an adult child. In this context, valid means true and rational means there is a logical connection between the reasons and the act of disinheritance. In the absence of expressed reasons for an unequal division, there is a reasonable expectation that adult children will share equally in their parents’ estate.

g) If the court concludes that the will-maker has not made “adequate provision” for his or her spouse or child, the court must then determine what is adequate, just and equitable in the circumstances existing and reasonably foreseeable at the date of the testator’s death and any substantial change in circumstance that has occurred between the date of death and the trial.

h) The factors that inform the existence and strength of a testator’s moral duty to independent adult children as set out in (d) above are also relevant to determining what constitutes adequate, just, and equitable provision in the circumstances of the case.

Trevor Todd and Jackson Todd have over Sixty combined years of experience in handling contested estates including wills variation proceedings.

s. 155 (1) of WESA states :

The personal representative of a deceased must not distribute the estate of the deceased person in the 210 days following the issue of a representation grant except

a) With the consent of all beneficiaries and intestate successors entitled to the estate, or
b) By order of the court.

The parties agree that the Court’s discretion to allow an interim distribution in circumstances where a wills variation claim exists is guided by the four considerations enumerated in Hecht v Hecht Estate (1991), 1991 CanLII 963 (B.C.C.A.) [Hecht] and David v. Burns Estate, 2016 BCSC 1982 at para. 31:

a) the amount of the benefits sought to be distributed as compared to the value of the estate;
b) the claim of the beneficiaries on the will-maker;
c) the need of the beneficiaries for money; and
d) the consent of the residuary beneficiaries to the payment.

An interim distribution is unlikely to be granted unless the risk that the variation order will encroach upon the funds needed to satisfy the bequest is remote: Hecht; Holmes v. Holmes, 2024 BCSC 737.

Trevor Todd and Jackson Todd have handled wills variation actions ( now S 60 WESA) for over 60 combined year and offer a free consultation if you believe you have such a case

BC WILLS VARIATION: AN OVERVIEW

INTRODUCTION

English common law, developed by English judges over centuries, provided that when a person died, that person could leave his or her property to whomever they wished. This was known as testamentary autonomy or testamentary freedom.

Alternatively, most countries in Europe and their former colonies in Central and South America, developed a civil-law system, whereby a fixed portion of the deceased’s estate, often 50 to 75%, passed automatically to the surviving spouse and children, leaving only a small estate available for discretionary bequests.

In 1920, British Columbia (BC) adopted a law from New Zealand called the Testator’s Family Maintenance Act that, that altered the common-law English law to allow widows and children to contest the deceased’s estate on the basis that they were not adequately provided for. This law was introduced during a great deal of world turmoil following the World War 1, when there were many widows and their children in need.

In 1971 this act was changed to the Wills Variation Act (WVA), and then March 31, 2014, substantially all of the provisions of the WVA were adopted into section 60 of the Wills, Estates and Succession Act (WESA).

WHO CAN FILE A S.60 WESA CLAIM IN BC?

Under section 60 of WESA, only the spouse (including common-law spouses and same-sex spouses, who have lived in a marriage-like relationship for at least two years), and biological or legally adopted children of the deceased can file a variation claim on the basis that they were not “adequately provided for” in the deceased’s estate. Regrettably, step-children have no standing to bring an action even if they were raised by the deceased from infancy, but were never adopted.

BC is unique in Canada in that an adult independent child is able to commence such an action, whereas in the other provinces the adult child must show dependency or an inability to provide for oneself in order to have the status to contest the will.

A child who has been “adopted out” to third parties has no claim against the biological parents, but would then potentially have one regarding their adoptive parents’ estate(s).

WHAT ASSETS ARE SUBJECT TO WILLS VARIATION?

Real property located in BC will be subject to the s. 60 WESA claims no matter where the deceased lived prior to his or her passing , provided that the asset is solely in the name of the deceased, and is not in joint tenancy with a right of survivorship with another person or persons.
Personal property such as cash, securities, and movable assets wherever located will fall under s. 60 WESA only if the deceased was domiciled in BC when he or she died. In basic terms, domiciled means that the deceased lived in BC and intended to make BC his or her permanent home.

Only assets which actually form part of the deceased’s estate are subject to s. 60 WESA claims. Thus for example, an insurance policy, pension plan, and the like with a named beneficiary will not form be part of the deceased’s estate, nor will assets in joint tenancy with a right of survivorship or assets in a trust. While such excluded assets cannot be divided up by the court in a s. 60 WESA proceeding, the court may consider these assets “passing outside of the estate” in determining what is a fair share of the estate assets to be varied.

It is also of note that if the deceased passes without a will on an intestacy, then s. 60 WESA will not apply, as there is no will to vary.

SECTION 60 WESA

1. 60 is the heart of wills variation proceedings and reads as follows:

“ Despite any law or enactment to the contrary, if the will- maker dies leaving a will that does not in the court’s opinion, make adequate provision for the proper maintenance and support of the will maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will maker’s estate for the spouse or children”

1. 61 WESA provides that a s. 60 WESA proceeding, must be commenced within 180 days from the date the representation grant (probate) is issued in BC.

TWO NOTEABLE DECISIONS

Walker v McDermott (1931) SCC 94 held that the claimant does not need to prove financial need in order to obtain a variation of the will. In that decision the Supreme Court of Canada ruled that in deciding the question as to what is an adequate provision, the court should proceed from the point of view of the judicious father of a family seeking to discharge both his marital and his parental duty. The court distanced itself from the concept of providing the bare necessities of existence, and instead divided the assets of the estate on a lump sum basis;

The leading case in BC, is the Supreme Court of Canada decision of Tataryn v Tataryn (1994) 2 SCR 807, where the court clarified the legal and moral duty owed by the testator to his/her spouse and children  and observed that in applying the Wills Variation Act there should be a search for “contemporary justice”.

Tataryn decided, inter alia, that:

1. The main aim of the WVA is the adequate, just and equitable provision for the spouses and children of testators;
2. the other interest protected by the act is testamentary autonomy, which is not to be interfered with lightly, but only in so far as the statute requires;
3. the test of what is adequate and proper maintenance and support is an objective test which must accord with society’s reasonable expectations of what a judicious parent would do in the circumstances, by reference to contemporary community standards;
4. the court must first consider any legal obligations of the testator to his or her spouse or infant children, and then secondly, the moral obligation to her spouse or children;
5. the moral claim of independent adult children is more tenuous than the moral claim of spouses or dependent adult children. If the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made; and

 

1. circumstances that will negate the moral obligation of a testator are valid and rational reasons for disinheritance. To constitute valid and rational reasons justifying disinheritance the reason must be based on true facts and the reason must be logically connected to the act of disinheritance.

Generally speaking, a spouse will receive an award equivalent to what the spouse would have received had he/she had separated with the deceased just before death. The various criteria of the Family Law Act will be resorted to by the courts including but not restricted to what assets were brought into the marriage by each party and the length of the marriage.

 

OVERVIEW OF THE CASELAW POST-TATARYN

In the post-Tataryn era (since 1994), the following considerations have been accepted as forming the existence and strength of a testator’s moral duty to independent adult children: (see Dunsdon v Dunston 2012 BCSC 1274)

1. the relationship between the testator and claimant, including abandonment neglect and estrangement by one or the other;
2. the size of the estate;
3. the contributions if any by the claimant;
4. the reasonably held expectations of the claimant;
5. the standard of living of the testator and claimant;
6. Gifts and benefits made by the testator outside the will;
7. the willmaker’s reasons for disinheriting;
8. the financial need and other personal circumstances, including disability of the claimant;
9. any misconduct or poor character of the claimant; and
10. any competing claimants and other beneficiaries.

These considerations tend to overlap and are not approached in isolation as independent, air-tight categories.

The law imposes no requirement that children be treated equally by a testator:  Price v. Lypchuk Estate, [1987] 4 W.W.R. 128 (B.C.C.A.).

Therefore, the mere fact that an independent child has not been given the same provision under a will as the testator’s other children, will not necessarily establish a moral claim. In a variety of situations the courts have accepted an unequal distribution of an estate as being fair and adequate. Tataryn itself is an example of an unequal distribution even after the court varied the terms of the will, as one of two sons was awarded substantially more than the other.

Tataryn also recognized that there is no single way for testators to divide the estate in order to discharge their legal and/or moral duties. It emphasized that it is only where a testator has chosen an option that falls below his or her obligation as defined by reference to the contemporary notion of legal and moral norms that a court will vary a will so as to achieve “the justice the testator failed to achieve”.

T

Trevor Todd and Jackson Todd have over 60 years experience in acting for disinherited individuals and utilizing the Wills Variation provisions of WESA to do so

Section 60 WESA gives the court the power to vary a will. Only the spouse of the will-maker or the will-maker’s natural  or adopted  children can commence an action to vary a will. A child given up for adoption does not have a claim against his/her natural parents, only the adopting parents.

The limitation period for commencing an action to vary a will is 180 days from the grant of probate, per section 61(1)(a) of WESA.

A wills variation action is commenced by a claim that the will-maker failed to “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children” (WESA, s 60).

When determining what constitutes adequate provision in a will, courts have considered the following:

• Actual need, which varies with age and dependency;
• Justifiable expectation based upon a dependency upon the will-maker or an actual contribution made by the claimant to the will-maker’s estate;
• Will-maker’s intention and reasons for making their will; and
• The size of the will-maker’s estate.

See Lukie v Helgason & Lukie, (1976) 26 RFL 164 (questioned) and Newstead v Newstead Estate (1996) 11 ETR (2d) 236 (BCSC) for detailed discussions of the above factors.

The Supreme Court of Canada’s decision in Tataryn v Tataryn Estate, (1994) 93 BCLR (2d) 145 provides a different focus for the determination of a wills variation claim. This is the leading authority in British Columbia on wills variation. The court considered the following factors in deciding what constitutes an “adequate, just, and equitable” provision in a will:

a) The will-maker’s legal obligations – maintenance and property allocations which the law would support during the will-maker’s lifetime; and

b) The will-maker’s moral obligations – society’s reasonable expectations, based on community standards, of what a judicious person would do in the circumstances.

In Dunsdon v Dunsdon 2012 BCSC 1274 (CanLII) [Dunsdon], the court provides a list of overlapping considerations that “have been accepted as informing the existence and strength of a testator’s moral duty to independent children:

• Relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other
• Size of the estate
• Contributions by the claimant
• Reasonably held expectations of the claimant
• Standard of living of the testator and claimant
• Gifts and benefits made by the testator outside the will
• Testator’s reasons for disinheriting
• Financial need and other personal circumstances, including disability of the claimant
• Competing claimants and other beneficiaries”

As the court notes in Dunsdon, “[t]he concept of adequate provisions is a flexible notion and is highly dependent upon the individual circumstances of the case. The adequacy of a provision is measured by asking whether a testator has acted as a judicious parent or spouse, using an objective standard informed by current legal and moral norms. The considerations to be weighed in determining whether a testator has made adequate provisions are also relevant to the determination of what would constitute adequate, just and equitable provisions in the particular circumstances.”

Where the size of the estate allows, surviving spouses and children are entitled to an equitable share under WESA, even in the absence of need.

The court may consider the applicant’s character or conduct, and variation may be refused on this basis (WESA, s 63(b)). If the estate is large and the spouse or children were not mentioned in the will, or they think they were inadequately or unfairly provided for, they should consult a lawyer. LSLAP cannot assist clients with wills variation claims.

NOTE: In a decision of the BC Supreme Court, Ward v Ward Estate, 2006 BCSC 448 it was held that a signed pre-nuptial agreement where both parties gave up any right or interest to the other’s estate was not determinative in a claim under the Wills Variation Act.

 

See Gosbjorn v Hadley 2008 BCSC 219 for a list of factors used by the courts to determine if there is a marriage-like relationship

More recently, see the discussion in Connor Estate, 2017 BCSC 978. In Connor the parties never lived together but were still found to be in a marriage like relationship

 In Boughton v Widner Estate, 2021 BCSC 325, the deceased had both a legal wife as well as a common law partner at the time of his death. The court confirmed that it is possible to have two spouses who concurrently meet the definition of a spouse under WESA section 2. The deceased’s estate was split equally between the two spouses.

 In BH v JH, 2015 BCSC 1551, the BC Supreme Court varied the husband’s will so that the wife, who was separated from but who had not divorced the husband, was entitled to part of the husband’s estate. This significantly deviated from what the wife would have received if they had divorced immediately before the husband’s death.

 Exclusion of Potential Beneficiaries

A will-maker who wishes to exclude a spouse or child should state precisely why the person is being “disinherited,” or why they are less than “adequately” provided for. LSLAP’s policy is not to draft a will where the will-maker wishes to exclude a spouse or child, or unevenly divide the assets between children. Such clients should be referred to a private lawyer unless the supervising lawyer gives approval.

As per section 60 of WESA, the court is not bound by the will-maker’s decision and reasons but may consider them. Therefore, the will-maker is not assured of success in their attempt to exclude or less than adequately provide for a spouse or child.

The chances of the will-maker’s will being upheld will be greater if the will-maker provides reasonable and rational reasons for the exclusion. For example, where the will-maker has already given the person substantial benefits during their lifetime, where the reason is based upon the person’s character, or on the relationship between the will-maker and the potential claimant, the court will be more likely to uphold the will-maker’s wishes.

Trevor Todd of disinherited.com has 50 years experience in the Vancouver general area handling wills variation cases to obtain  just results for a disinherited child or spouse.

The law of wills variation currently flows from section 60 of the Wills, Estates and Succession Act (“WESA”)
 which empowers the court, in its discretion, to vary a will if, in the court’s
opinion, the will does not make adequate provision for the proper maintenance and support of
the will-maker’s spouse or children:

Despite any law or enactment to the contrary, if a will-maker dies leaving a will that
does not, in the court’s opinion, make adequate provision for the proper maintenance
and support of the will-maker’s spouse or children, the court may, in a proceeding by or
on behalf of the spouse or children, order that the provision that it thinks adequate, just

and equitable in the circumstances be made out of the will-maker’s estate for the
spouse or children.

The governing authority in British Columbia on the application of section 60 of the Act is the
Supreme Court of Canada decision in Tataryn v. Tataryn Estate, [1994] 2 SCR 807.

In that case, Justice McLachlin ) set out the key principles that must guide the court in the
exercise of its discretion, including the following:

1. The test for determining what is “adequate, just and equitable” is that of the “judicious
   father of a family seeking to discharge both his marital and his parental duty”.
2. The determination of what is “adequate, just and equitable” should be made according
   to contemporary standards. Those standards will change from time to time and the
   courts are not bound by the views and awards made in earlier times when standards
   were different.
3. While the WESA protects both the interests of “adequate, just and equitable” provision
   for claimants and testamentary autonomy, the former interest is paramount.
   Testamentary freedom must yield to the extent required to achieve adequate, just, and
   equitable provision for the applicant spouse and/or children and only to that extent.
4. A proper determination of what is “adequate, just and equitable” has two distinct
   components: assessment of the will-maker’s “legal obligations” and “moral obligations”
   to the claimant.
5. All claims against the estate should be met if the size of the estate so permits. If all
   claims cannot be met, legal obligations should take precedence over moral obligations.
6. The moral claim of independent adult children is more tenuous than the moral claim of
   spouses or dependent adult children. But if the size of the estate permits, and in the
   absence of circumstances negating the existence of such an obligation, some provision
   for adult independent children should be made.
7. In any given case, there will be a wide range of options, any of which might be
   considered appropriate in the circumstances. Provided that the testator has chosen an
   option within this range, the will should not be disturbed.

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disinherited.com has contested wills in BC for 50 years using the provisions of the wills variation provisions.

 

The BC Court of Appeal in the decision Tom v. Tang 2023 BCCA 221 is a significant wills variation case .

The deceased left valid and factually rational true reasons for leaving 85% of her estate to two of five children, but the court held that the test is one of the objective judicious parent as to whether the parents moral obligation had been met.

The appeal court upheld the variance of the will where the two major beneficiaries shares were reduced to 30% each, while the other three remaining children each received 13 1/3%.

The parent had left a will in which she stated that 85% of her estate was going to two of her children as they provided her care in the last three years of her life.
The trial judge varied the will and the appeal court upheld that distribution. The appellants argued that the testator’s wishes should be respected as she had valid and rational reasons for the distribution that she made.

The respondents successfully argued that the test should be one of the objective judicious testator.

The appeal court clarified that previous significant decisions such as Bell v Roy (11993) 75 BCLR (2d) 213 Hall v hall 2011 BCCA 354 and Kelly v baker (1996) 82 BCAC 150 and the perceived conflict between those decisions and the Supreme Court of Canada’s Tataryn v Tataryn Estate ( 1994) 2 SCR 807.

The court held that the aforesaid Bell, Hall, and Kelly cases do not stand for the principle that a testator’s unequal treatment of adult children must be deferred to if the reasons given for the unequal distribution, or valid and rational. Those cases read in context recognizes the testator’s moral duty to adult children must be assessed using the objective standard of the reasonable testator, and provide that the moral duty may be negated where there is just cause.

In the Tom v Tang decision the court held that the testator did not meet the objective standard of a judicious parent, given that each child had a significant moral claim arising from their contributions to the family economy.