How Does a Court Decide Whether to Vary a Will?

Under B.C. law, a spouse or child of a person who leaves a will that is believed to inadequately provide support can request that a court modify the terms of the will. Section 60¹ of the Wills, Estates and Succession Act (WESA) permits the court to change the terms of the will if, in the court’s opinion, the will does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children. In order to initiate an action under this section, a family member must file a claim with the court within 180 days of the issuance of the representation grant (grant of probate), which must be served within 30 days after the end of the 180 day period.

How does the Court determine whether the will is “adequate and proper?”

Courts have significant discretion in deciding whether to modify the terms of a will. The meaning of the relevant provision in WESA has been clarified through a significant body of case law, of which the seminal case is Tataryn v. Tataryn 1994 CanLII 51 (SCC).² In that case, the Supreme Court of Canada indicated that a court should consider a testator’s legal and moral duties to his or her spouse and children when determining what is adequate, just and equitable. Because a court deciding a will contest is balancing the opposing interests of a testator’s freedom to dispose of his or her estate as he or she intends and the right of children and spouses to have their needs met, it will consider a number of factors in determining whether to modify the terms of a will. As a result, it is important for people seeking a will modification to retain legal counsel familiar with WESA litigation in B.C.

Contact a Vancouver estate litigation law firm today to schedule a consultation

Discovering that the terms of a will are unfair to you or your family can be a difficult and confusing experience. Fortunately, the laws of British Columbia allow individuals to challenge the terms of a will that they believe to be unfair or inadequate. The procedural and substantive rules regarding will variations are complex, so it is important for anyone considering challenging a will to retain an experienced Vancouver wills, trusts, & estates lawyer as soon as possible. To schedule an appointment with one of the lawyers of McLarty Wolf, please call our office today at 604-687-2277.

References:

¹ http://www.bclaws.ca/civix/document/id/complete/statreg/
09013_01#section60
² www.canlii.org/en/ca/scc/doc/1994/1994canlii51/1994canlii51.html