It’s a common scene in popular soap operas and drama movies – the patriarch or matriarch of a family dies and, when their will is read, they’ve left nothing to some of their children or cut out their spouse of 30 years and given everything to a mistress. Shock, outrage, and enduring family feuds ensue. While this type of thing could happen in real life, the Wills Variation Act would provide a potential remedy for financially abandoned dependants (though the process would be much too dry for a daytime soap).
What is the Wills Variation Act?
The Wills Variation Act is a British Columbia act that allows the courts to modify a will after a person’s death. The courts can only do this in very specific circumstances; however, how and by how much the will is varied is ultimately a matter of discretion for the judge hearing the case.
Why is there a Wills Variation Act?
The reason for an act like the Wills Variation Act goes back to the judge-made common law of England. If a person dies and chose not to adequately provide for their dependants in their will, the courts can fix the situation to make it fairer. Taking this initiative is based on the belief that the deceased had either a legal or an ethical obligation (or both) to continue to provide for their dependants in their estate.
Honouring the wishes of the deceased as to the disposition of their property is also a very important principle. As a result, the courts have to use their discretion to delicately balance forcing the fulfilment of what it deems to be a moral obligation and allowing a will to be administered as written.
How are claims under the Wills Variation Act assessed?
Broadly speaking, the process under the Wills Variation Act is as follows. An eligible claimant, a child or a spouse, starts a court action to vary an eligible will within six months of its grant of probate. The court will hear all the evidence from the relevant parties, including the estate administrator or executor and other beneficiaries. The court will then try to objectively determine what adequate and proper support for the dependent would be in the specific circumstances of the case. This includes looking at the size of the estate, the situation of the claimant, and the intentions of the deceased.
The court looks for both legal obligations to the claimant as well as moral ones. If the deceased specifically wanted to disinherit the claimant and gave reasons, the court will consider the reasons in light of what would be valid and rational in the circumstances. If the court decides to vary the will, it will then determine how much to award the claimant. After the case is heard, parties may appeal the case to a higher court if they disagree with the judge’s reasoning.
The claim process and the assessment of actions under the Wills Variation Act will be reviewed in detail in other articles.
