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.
