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”.

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