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Wills Variation Awards Fall Rateably

Wills Variation Awards Fall Rateably

Section 65 WESA provides that, unless the court otherwise determines, the incidence of the payments ordered falls rateably on the whole estate.

Several cases confirmed that the BC courts prefer in most instances to satisfy a claimant’s claim( assuming it is meritorious) with a payment that falls rateably on all beneficiaries..

In Sawchuck v McKenzie Estate 2000 and BCCA 10, the court awarded $1 million to the appellant childhood applied to vary the will.

The appeal court stated “ I agree with the trial judge that the incidence of the provision for the appellant should fall rateably on the residuary beneficiaries”.

Tomlyn v Herchenson Estate 2008 BCSC 331 the court varied the will and then found that the remaining specific bequests be paid rateably from the money available in substitution for, and satisfaction of those bequest, stating:

“The result of these provisions is that the monies remaining for distribution to satisfy the cash bequests of $270,000 and Raymond’s Fund of $50,000 is approximately $173,000. I order that Raymond’s Fund be reduced from $50,000 to $25,000 payable to or for the benefit of Raymond Olsen at $400 per month and that, upon his death, what remains shall be payable to the Royal City Humane Society in substitution for and satisfaction of the specific bequest of $50,000.

The remaining specific bequests amount to $220,000 and the approximate monies available in payment of those bequests is approximately $148,000 less costs, which I will deal with below.

It is ordered that the beneficiaries of the specific bequests set out in para. 13 of the Will be paid rateably from the money available in substitution for and satisfaction of those bequests.”


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