How Do BC Courts Decide How to Change a Will?

BC Courts apply several considerations when a party applies to change a Will (often brought on by an estate litigation action).


Chilliwack Courthouse BC

The Wills Variation Act allows courts to change a will so that dependents of the deceased are adequately and properly provided for financially.  The Act helps to ensure that all of the deceased’s legal and moral obligations to dependents are met in the dispensation of their estate.  Judges use their discretion to carefully balance this with honouring the wishes of the deceased as they are set out in their will.

In making these decisions, judges are guided by the words in the Wills Variation Act itself as well as the leading cases that have dealt with the same issues.  Judges are tasked with two things.  First, they must determine whether the will “makes adequate provision for the proper maintenance and support” of the child or spouse making the Wills Variation Act claim.  Second, if they find that the will does not make adequate provision, then they must figure out an “adequate, just, and equitable” way to change the will. (Tataryn v Tataryn Estate (1994), 93 BCLR (2d) 145 (SCC))

What does “adequate provision for the proper maintenance and support” mean?

The circumstances specific to the case that’s in court will guide the judge in the analysis of what an “adequate provision for the proper maintenance and support” is given the particular set of facts.  Judges will look at a number of different factors that will influence the analysis as well as how previous cases were decided.

First of all, the judge will look at the lifestyle to which the claimant is accustomed.  Generally, this is linked to the standard and cost of living that the claimant and the deceased had shared.  For example, if they lived in an expensive house and had a nice car, then enough money to maintain these items would be more likely to be considered what is required to be adequate.  However, adequacy will always be linked back to, and limited by, the amount of the actual estate.  If the estate is only worth $20,000, then the court can’t grant $100,000 to maintain a certain lifestyle.

Courts will also consider the financial need of the claimant.  This isn’t a determining factor on its own, but rather one of many that will be reviewed.  Generally, if a claimant demonstrates financial need, the chance of a finding that no or a small inheritance of a big estate is inadequate is greater.  Again, this is moderated by the size of the actual estate in question.  If a claimant does not have any financial need, the case is not necessarily over.  When there’s a large enough estate, need may become a less important factor.


Children and spouses are also often treated differently.  Spouses tend to have a higher chance of success in Wills Variation Act cases as compared to independent adult children.  Dependent children (infants, youth, etc.) and children with financial need will also have better chances.  Independent adults have, however, been successful in the past, especially when there appears to be a high moral duty assessed to the deceased and/or a very large estate.  Greater detail on the differences between a case brought by a spouse and one brought by a child will be given in separate articles.

What does “adequate, just, and equitable” mean?

Like above, as with most things in this area of law, what is considered to be “adequate, just, and equitable” in a particular case depends very much on the specific circumstances of the parties and the will.  Generally, judges will look for two things: first, whether the deceased had any legal obligations to the claimant, and, second, whether they had any moral obligations to the claimant.  Another article on how judges decide the amount to award a claimant in Wills Variation Act cases will provide more detail on this part of the analysis.




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