Wills Variation: History and Perspective

Wills Variation: History and Perspective

Any discussion of the BC Wills Variation Act ( now S.60 WESA) in order to get  perspective  requires an understanding of the English common law which provides the background for this Act.

English common law, developed by the English judges over the centuries, provided that when a person died, that person could leave his or her property to whomsoever he or she wished.

This complete freedom to dispose of one’s estate is known as “testamentary autonomy ” or “testamentary freedom”. This legal doctrine was developed by the English courts during a time (1700-1900) when little property was actually disposed of by will.

During that time, few people actually had any property and most wealth was made up of real property which was usually considered to be family property. Because it did not belong to the individual, it was not part of the individual’s estate to be disposed of by will.

Those that had assets often resorted to the use of trusts rather than wills as trusts are not subject to review and public as a will may be.

When the children of wealthy families married, their families often made marriage settlements which included conditions about the ownership of the property and how it would pass upon the death of various family members. Thus, property governed by a marriage settlement was not part of an individual’s estate.

It was in this context that the English courts decided that a testator (person making a will) was free to decide who should inherit under his or her will.

Thus, the English common law allowed testators to dispose of their estates as they saw fit. Even today at common law testators have no legal duty to leave anything to their spouse or their children.

This common law approach, which was inherited by the former British Colonies including Canada, is in stark contrast to most of the non-English speaking world.

Outside of England, the rest of Europe, Central America, South America and many of Europe’s colonies had a civil code that requires a fixed portion of a deceased’s estate (often 50% to 75%) to pass automatically to the surviving spouse and children. The testator can only dispose freely of a smaller portion of his or her estate.

The credo seems to be “you had them, you give them your property when you die”.

In our common law world, the doctrine of testamentary freedom has been modified by statutes, such as the B.C. Wills Variation Act ( S. 60 WESA) , which permit the spouse or children to make a claim against the estate in appropriate circumstances.

Nevertheless testamentary freedom still prevails unless there is a successful statutory claim brought under Wills Variation litigation.

The British Columbia Wills Variation Act ( now S. 60 WESA) allows for equity to be done where a wills variation claim is made by a child or spouse who is disappointed with the provisions of the Deceased’s last will. The disappointed beneficiary may have been completely disinherited, given a minimal sum, or given a life interest rather than the entire property outright.


What property is subject to the British Columbia Wills Variation actions?

No matter where the Deceased lived prior to death, if he or she leaves behind any real property (land and buildings) located in B.C. this property will be subject to the terms of Wills Variation.

Only where a Deceased was domiciled in B.C. at the time of death will his or her personal property (basically cash, securities and moveable assets) fall under Wills Variation , . In basic terms “domiciled” means that the deceased lived in British Columbia and intended to make B.C. his or her permanent home.

Only those assets which actually form part of the Deceased’s estate are subject to Wills Variation claims. Thus, for example a pension benefit payable to a third party beneficiary will likely not be part of the deceased’s estate nor will insurance proceeds payable to a particular beneficiary. Such excluded assets cannot be divided up by the court in action brought under the British Columbia Wills Variation Act they may be considered by the court in ultimately determining what is a fair share of the estate for the various parties if a BC Wills Variation Act claim is made

As to assets held in joint tenancy, it will depend on the individual circumstances of the case whether they pass automatically to the surviving joint tenant or whether they form part of the estate.

For example, if the other owner is the Deceased’s spouse, chances are good that they will take the property by right of survivorship so it will not fall into the Deceased’s estate. If the property is held with someone else, it will depend who paid for the property and the reason for which it is held in joint names-it may be held in trust for the estate or it may pass by right of survivorship.


Legislative Background

New Zealand was the first common law jurisdiction to seriously question the doctrine of testamentary freedom on the basis that the family had a right to be protected. In 1900 New Zealand passed the Testator’s Family Maintenance Act and in 1920, British Columbia followed suit.

The two jurisdictions remain perhaps the only ones in the world where an adult independent child of a deceased can sue to vary the will in his or her favour on the basis that he or she were not adequately provided for.

Other Canadian provinces have similar legislation however in other common law provinces children have no claim unless they are infants or were otherwise dependent on the testator.

The major difference is that under the B.C. Wills Variation the testator’s adult independent children may bring a claim irrespective of their age or state of dependency.

Thus, in other provinces, a parent may disinherit an adult independent daughter on the basis of her gender alone or disinherit a gay son based on his sexual preference alone. There would be no remedy in either case unless the child was still a dependent.

In British Columbia, however, such wills would be open to challenge under the provisions of our Wills Variation Act as being unfair and in breach of our contemporary community standards.

Potential Claimants in British Columbia

S. 60 WESA permits a claim to be brought only by a spouse or child ( natural or adopted) of the Deceased.

WESA  defines spouse to include a same sex or common law spouse provided the couple had been cohabiting in a marriage-like relationship for at least 2 years prior to the Deceased’s death.

The case law interprets children to include adopted children but not step children. In the case of unacknowledged biological children DNA testing can be very helpful in some cases.

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