Are Will Variation Claims Worthwhile?

While the Wills, Estates and Succession Act (WESA) of British Columbia has provided a framework for seeking a variation of the distribution of an estate that is set down in a will written by a person who has since died, (as well as challenging the validity of a will on the grounds of undue influence or lack of the requisite testamentary mental capacity), a child or a spouse of that person is confronted with a difficult and complex decision when he or she learns of the contents of a will and considers whether to seek a variation.

First, an effort must be made to try and understand why the will-maker chose to treat, for example, their loved ones differently.  Sometimes a will or a companion letter includes wording that attempts to explain that different treatment but often no such explanation is given.  This process is complicated by the fact the loved one recently died and grieving over his or her passing is still ongoing. Unfortunately, as discussed below, there is a relatively narrow time period in which will’s variation lawsuits can be commenced. 

Second, thought must be given to the consequences of commencing a lawsuit that names family members as defendants.  Litigation amongst family members, not surprisingly, can negatively affect sibling relationships or even relationships with the surviving parent or step-parent. 

Third, litigation can be expensive.  In most will variation cases, the court does not order that the court costs of the parties be paid from the estate so each litigant has to pay for their own lawyer. Further, there can be ‘costs’ consequences to the unsuccessful litigant. That is, the court may require that the ‘loser’ pay a portion of the legal expenses of the ‘winner’.  (There are however strategies that can be employed to reduce the expense of litigation by seeking negotiated resolutions before a trial. Those strategies are discussed in more detail below.)

Despite these considerations, many will variation lawsuits are commenced in the Supreme Court of British Columbia.  Possible explanations for the propensity of British Columbians to seek to vary wills include the fact that the court is granted a broad discretion by WESA to vary a will.  This makes wills vulnerable to challenges and increases the ‘reward to risk ratio’ for potential lawsuits. Second, because of the high value of real estate in British Columbia, many estates are worth $1 million or considerably more, again increasing the ‘reward’ component of that ratio in favour of potential challenges.

Am I Eligible to Make a Variation Claim on a Will?

According to Section 60 of WESA, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just, and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

Spouses and children, of a will-maker, are therefore the only persons eligible to make variation claims.  Siblings, grandchildren, parents or nieces and nephews of the will-maker are not entitled to bring a will variation claim.

As discussed above, any child or spouse who seeks a variation of a will must commence a lawsuit in the Supreme Court of British Columbia quickly.  The notice of civil claim must be filed within 180 days of the date that the court makes what is called a ‘representation grant’ – typically that is the grant of probate by the court to the executor appointed by the will.

Consequently, if you are considering a possible challenge of a loved one’s will, you must act quickly and seek legal advice as soon as possible.

Who are the Parties to a Will Variation Lawsuit?

Every claim must have a ‘plaintiff’ who is the person who commences the lawsuit by filing a notice of civil claim seeking a court order varying the will.

The notice of civil claim must name as defendants to the lawsuit any surviving spouse and children of the will-maker and all beneficiaries named in the will itself.  It must also name as a defendant the executor appointed by the will.  

Collectively the plaintiff (or plaintiffs if more than one person joins together to commence the claim) and the defendants are referred to as ‘parties’ to the ‘action’.

What Happens in a Will Variation Lawsuit?

A will variation lawsuit involves various basic steps that are typical of most lawsuits and are mandated by the Supreme Court Civil Rules.  The first important step is the exchange of ‘pleadings’. That is the plaintiff starts the lawsuit by filing with the court a notice of civil claim and serving that document on each of the defendants.

That document explains the plaintiff’s reasons for seeking a variation of the will. The defendants named in the notice of civil are then required to file responses to the civil claim if they intend to dispute the plaintiff’s claim. 

Those responses set out on the defendants’ positions on the issues raised in the notice of civil claim. Typically the defendants will deny those claims and seek an order dismissing the notice of civil claim.

The next step typically involves each party preparing a ‘list of documents’ and sending that list (together with copies of the documents disclosed thereon) to the other parties.  The documents that have to be listed are any documents in the party’s possession or control that could be used to prove or disprove a ‘material fact’ in the litigation.  

The next usual step is to conduct an examination of discoveries.  Each party has to if asked, attend before a transcriptionist (called a ‘court reporter’) to answer questions under oath posed by lawyers for the opposing party (or parties).  A person testifying at an examination for discovery must answer any question within his or her means of knowledge regarding any matter, not subject to a claim for privilege, relating to a question in the lawsuit.  A key question to be explored on any examination for discovery in a will variation claim are the reasons expressed by the will-maker while still alive explaining the distribution of assets set out in the will.

Another step before a trial is to interview key witnesses who may have knowledge of the will-maker’s intentions.  A key example would be the lawyer or notary who drafted the will. A copy of the file they kept on the making of the will would also be sought.

Lawsuits of any type may conclude at a trial at which each of the parties is allowed to present evidence to a judge and argue the merits of their respective decisions.  The judge then gives reasons for judgment that contains an order that either varies the will in the manner the judge sees fit or dismisses the claim.

Is There an Alternative to a Lawsuit in a Will Variation Claim?

Unless a dispute over the variation of a will can be settled quickly and relatively amicably, it will be necessary to file a notice of civil claim to ensure that the ‘limitation period’ for commencing the claim does not expire.  However, once the notice of civil claim has been filed, it may be possible to commence negotiations to try to resolve the lawsuit before some of the litigation steps described above are carried out. However, negotiations can go on at any time during the lawsuit including during the trial itself and a case can be settled at any time before the judge gives his or her reasons for judgment.

Will variation claims often are settled at a ‘mediation’ which is a form of ‘facilitated negotiation’.   At a mediation, the parties collectively hire an independent person as a mediator to facilitate negotiations (but not make a decision).   Mediators are often experienced lawyers or retired judges familiar with WESA and the law of will variation claims. Mediation can be held at any time before the judge renders judgment.  If the mediation is successful, the parties will enter into a ‘settlement agreement’ that resolves the lawsuit.

At McLarty Wolf, our experienced disputed estates lawyers explore every possible method of dispute resolution to obtain favorable results for our clients.  If you have a potential will variation claim or need to defend such a claim, please call our office today at 604-687-2277 or use our online contact form and our team will give you a call to schedule a free initial consultation to find out how we can help you.