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,  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:
- 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”.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.