Wills Variation Estate Primer

Erin

POSTED BY

Erin Hatch

Harper Grey LLP

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As you make decisions regarding your estate and succession planning, you want to ensure that your final wishes will be upheld and withstand judicial scrutiny. You may also face a situation where you have been completely left out of a will, or you may feel that you have not been left your fair share of the estate under a will.

This primer will help you to understand what circumstances a will in British Columbia can be called into question and potentially varied. As well, it will outline steps at the planning stage that you can take to reduce the risk of an attack of your will.

What does it mean to vary a will in British Columbia?

If a will-maker disinherits or “underprovides” for their spouse or child, the spouse or child can apply to the Supreme Court of British Columbia to vary the will so that he/she receives a greater portion of will-maker’s estate. The following are examples of situations at the estate planning stage that you may find yourself in where wills variation concerns should be taken into account:

■ You are on your second marriage. You and your second spouse agree that both of your respective estates should be left to your children from your first marriages and you wish to exclude each other from your wills;

■ You have generously provided for your children throughout their lives so that your children are financially well off. You wish to leave your estate to charity and friends instead of your children; or

■ You are estranged from one of your children. You wish to exclude your estranged child from your will altogether.

The following are examples of situations you may find your self in when you are involved in litigation:

■ Your mother died and you have learned that she has excluded you from her will. She has given her entire estate to your sisters;

■ You are appointed as executor of your brother’s will. A wills variation lawsuit has been commenced against you, in your capacity as executor, because your brother did not treat all his children equally under the will; or

■ Your father died and you have learned that he has given his second wife and his stepchildren a greater portion of his estate than you received.

What steps at the planning stage can I consider in order to reduce the risk of a wills variation claim?

Options that you should consider, in consultation with your legal and tax advisors, include:

■ Designating beneficiaries (individuals or trustees of your trust) on your pension plan, RRSPs, RRIFs, TFSAs and life insurance policies;

■ Transferring property into joint tenancies;

■ Transferring property into a trust;

■ Gifting assets during your lifetime; and

■ Carefully documenting your reasons for the distributions under your will.

It is very important to discuss these options with your professional advisors because some of the options may result in income tax, property transfer tax or other taxes. In addition, some of the options will result in the loss of control over your assets.

What legislation permits the variation of a will in British Columbia?

Section 60 of the Wills, Estates and Succession Act, SBC 2009, Chapter 13 (WESA) provides that the court may vary an otherwise valid will where, in the court’s opinion, it does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children.

Who is entitled to apply to vary a will?

Only spouses and children may apply to vary a will.

In order to qualify as a spouse, the person wishing to vary the will must have:

a) been married to the willmaker at the time of the will-maker’s death; or

b) lived in a “marriage-like” relationship with the will maker for at least two years prior to the will-maker’s death. Various factors will be considered with respect to whether a couples’ relationship was “marriage-like”.

In order to qualify as a child, the person wishing to vary the will must be a:

a) biological child of the will-maker; or

b) legally adopted child of the will-maker.

Other family members of the willmaker, such as parents, siblings, step-children, cousins, nieces and nephews are also not permitted to apply to vary a will. However, this does not mean that these family members or friends will not start an action based on other claims. For example, they may try to set aside a will based on undue influence or incapacity of the will-maker.

What assets are subject to a wills variation claim?

A wills variation order under WESA applies to the will-maker’s real and personal property that forms part of the estate:

■ real property is property that is attached to land and the land itself, for example, the will-maker’s residence, recreational properties or investment properties; and
■ personal property is all other property that is not real property, for example, personal belongings and bank accounts.

Some examples of property that does not form a part of the willmaker’s estate and is not subject to a wills variation claim include:

a) property held in joint tenancy by a will-maker and another;

b) insurance policies and proceeds to from registered plans payable to designated beneficiaries; and

c) assets subject to a trust.

How long do I have to apply to vary a will?

A court proceeding to vary a will must be filed at the Supreme Court of British Columbia within 180 days of the date of probate. Probate is the process whereby a court rules that the will in question is legally valid. You should seek legal advice as soon as you have a concern, whether probate has been granted or not, in order to ensure that the limitation does not expire. 

This article is not a legal opinion. Readers should not act on the basis of this article without first consulting a lawyer for analysis and advice on a specific matter. If you have any questions about this topic, please contact:

Erin Hatch,
ehatch@harpergrey.com
Tel. 604-895-2818

Erin Hatch is an estate litigation lawyer at Harper Grey LLP. The views expressed are those of the author and not necessarily those of RGF Integrated Wealth Management Ltd., which makes no representations as to their completeness or accuracy.