Wills Variation – Interim Distribution Ordered

Court Ordered Interim Distribution in Wills Variation Claims

There is both court authority and statutory authority allowing the court to exercise its discretion to release a part of the testator’s estate as an interim distribution in a wills variation action.

Section 66 WESA allows the court the power to release a part of the testator’s estate from the effect of a variation order.

In Hecht v Hecht (1990) 39 ETR 165 BCSC , the court held that a legacy under a will can be paid notwithstanding a pending claim for variation when the risk of the variation order will encroach upon the funds needed to satisfy the legacy is remote.

At paragraph 42, the factors to be considered by the court when deciding whether to exercise its discretion to release part of an estate from the effect of a variation order include:

A. The amount of the benefits sought to be distributed as compared to the value of the estate
B. the claimant the beneficiaries on the testator
C. the need of the beneficiaries for money;
D. the consent of the residuary beneficiary to the proposed distribution

Davis v. Burns 2016 BCSC 1982, also allowed an interim distribution to a beneficiary under a wills variation action, where the court specifically exercised its inherent jurisdiction to do so. The court ordered that more than 50% of his potential residual share, despite the objection of another residuary beneficiary, citing lack of prejudice, since the distribution only amounted to 10% of the total value of $2,500,000.

The court followed the criteria previously set out in Hecht.

In Davis, the court held that, having regard to the plaintiff’s financial need in the amount of the benefits to be distributed from the estate, the distribution to the plaintiff would not prejudice the estate or the executor’s duties.

Deceased Beneficiary May Claim Wills Variation (WESA)


A Wills Variation Action  ( S. 60 WESA) may Be commenced even after death of Disappointed Beneficiary by his or her personal representative as per Currie Estate v Bowen ( 1989) 35 BCLR (2d) 46.

In that case the husband died six weeks before his wife and his will made no provision for his wife.

The court held that the wife’s right of action under the wills variation act vested at the date of the husband’s death, and that the wife’s personal representative had the right to bring a wills variation action after her death.

They had been married 25 years and there were no children of the marriage. That husbands will made no provision for his wife and his estate was valued at $517,000`, and hers at $130,000.

The plaintiffs were the children of the wife from an early marriage, and the administrators of her estate.

The defendants were the husband’s executor and the children of the husband’s first marriage. The plaintiffs commenced an action under the wills variation act and the defendants applied to dismiss the action.

The court dismissed the application holding that the wills variation act gave the wife the right to claim and equitable share in her husband’s estate, a right which vested at the time of his death. Because the right to advance the claim was granted by statute, and was not founded in tort, and was broader than a claim for mere support or maintenance, the cause of action therefore survived death. Although the statute did not explicitly authorize the claim to be made by the personal representative of the deceased, that right was implied.

In Barker v. Westminster Trust Co., 57 B.C.R. 21, [1941] 3 W.W.R. 473, 614 [1941] 4 D.L.R. 514 (C.A.), the Court of Appeal wrestled with this issue in an inconclusive way. O’Halloran J.A. held that an action under the Testator’s Family Maintenance Act survived the death of the claimant. He said at p. 478:

In the language of Lord Mansfield, cited supra, the appellant’s cause of action is founded in a duty which the testatrix owed him.
That duty was imposed by the statute when it provided the Court should intervene on the application of a wife, husband or child who claimed to have been deprived of “proper maintenance” in the will of the testator. It must follow therefore that the appellant’s right to apply under the statute passes to his executors. That being so, and the maxim actio personalis moritur cum persona being excluded, the objections to the motion to add the executors of the appellant as parties must fail.
And he concluded by saying, at p. 495:
In the circumstances I see no grounds for depriving the husband of that share in the estate of his wife which the policy of our law has indicated to be adequate, just and equitable if she had not made a will.
He went on to rely on s. 13 of the statute to which reference has been made above. McDonald J.A. came to the opposite conclusion. His opinion is summarized at p. 496:
It seems however advisable to consider the question on broader lines as well. The long title of the Act shows that it is an Act to secure adequate and proper maintenance for the persons entitled to apply and under sec. 3 the Court is to give for that purpose what is “adequate, just, and equitable in the circumstances.”
The peculiar nature of these powers if fairly obvious; though the terms “just” and “equitable” are used they cannot be used in the technical sense, for no standard is provided, and “justice” and “equity” in the legal sense presuppose some standard. Obviously the statute uses these terms in a popular and looser sense; the Court is to apply moral or ethical standards. The Court is to be governed by the applicant’s needs and moral claims and not by anything resembling legal rights.
Sloan J.A. gave the third decision, and while he aligned himself with O’Halloran J.A. in the result, he found it unnecessary to come to a conclusion at this point.

Wills Variation -Daughter Succeeds vs Second Spouse

Wills Variation- ,000 Inheritance Increased to 0,000

McLellan v McLellan 2011 BCSC 461 is a wills variation case involving interesting facts, where a daughter’s bequest was increased from $15,000 to $250,000 of a $1.75 million estate.

The testator married his 1st wife in 1966 and they had 2 children.

In 1988 his wife suffered a stroke and was left debilitated.

In 1990 the testator left his wife for another woman, whom he married within one year.

The plaintiff was 19 years when her father left the matrimonial home.

The plaintiff was left to care for her debilitated mother over a relatively long period of time that interrupted her education.

The plaintiff also had to finance her post secondary education in circumstances where she had a reasonable expectation that her father would assist her financially, which he did not.

The relationship between the plaintiff and her father remained strained for many years.

The deceased left the plaintiff $15,000, her sister $35,000, and the residue of the estate to his 2nd wife.

No reasons were stated for the modest bequest to the plaintiff.

The estate was approximately $1.75 million.

In addition his wife received assets of almost $1 million outside of the estate.

The widow also had an income of approximately $250,000 per year from the various franchises that she and the deceased owned.

The plaintiff had inherited $300,000 from her mother’s estate, and she and her husband had joint assets of $1.78 million.

The court increased the plaintiff daughters inheritance from $15,000 to $250,000.

It is noteworthy that the court found that the deceased, as the parent and much more mature adult, bore the greater responsibility for the estrangement between himself and the plaintiff.

It is the experience of us at disinherited.com, that the reasons for the estrangement between a parent and a child are more often than not directly attributed to improper parenting rather than the fault of the child.