Trevor Todd and Jackson Todd have over sixty years combined experience in handling contested estates including wills variation claims.
Only assets passing pursuant to a will and requiring probate can be attacked under the wills variance laws.
Other assets passing outside of the estate such as joint tenancies cannot be attacked under wills variation claims, but the court can take those assets into account.
Assets passing outside of the estate such as inter vivos dispositions and assets passing by right of survivorship are relevant to determining whether a will should be varied under wills variation provisions and the issue of adequate provision for an adult child.
In Inch v. Battie, 2007 BCSC 1249 it was stated:
It thus appears that, although transfers passing outside of the Will are not part of the estate, the effect of such gifts can be considered in determining to what extent, if any, the court should vary the distribution under the Will.
In DeLeeuw v. DeLeeuw, 2003 BCSC 1472, Masuhara J. did consider the assets transferred to the claimant, the surviving spouse, before the testator’s death, in determining whether he made adequate provision for her proper maintenance and support (at paragraphs 98 – 100).
In Ryan v. Delahaye Estate, 2003 BCSC 1081, D. M. Smith J. considered compensation provided to the testator’s son for his devotion during the parents’ lifetime, and an interest-free loan made to him, in determining if there was proper maintenance and support for the other child. I thus conclude that, although inter vivos dispositions, and assets passing as a result of a right of survivorship pass outside the estate, and are thus not subject to a claim under the Wills Variation Act, the court can consider them when assessing, from the perspective of a judicious person, in the circumstances, whether a parent has met her moral obligations to an adult child.