Procedure for applications under the Wills Variation Act
The Wills Variation Act allows courts to change a will so that dependants 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 dependants 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.
Like all court actions, a specific process must be followed to make a claim under the Wills Variation Act. What follows is a summary of what you would need to do and know about the court’s procedures in order to make a claim.
Making the claim
To begin, you would need to file a notice of claim with the registry of the Supreme Court of British Columbia. This informs the court and parties that you’re going to apply to have the will varied.
If a person who is eligible to make a claim under the Wills Variation Act cannot do so on their own, then someone may make a claim on their behalf. This can happen in a variety of circumstances, such as when a child is still young, a child or spouse has a severe mental disorder, or a child or spouse dies before getting to court (but after the person whose will is in dispute).
The notice of claim must be filed within six months of the granting of probate for the will.
All the people that have an interest in the court action and a right of standing in court for it are called the parties. The parties in this type of case include the spouse and children of the deceased as well as any other beneficiaries and the executor or the administrator of the estate, whose job it is to stand in on behalf of the deceased.
If some of the property being disputed is land, then you must file a certificate of pending litigation with the land titles office. This notifies anybody who is interested in that property that its ownership is in question and helps prevent, for example, someone from quickly selling it off before the Wills Variation Act case is settled.
Settlements and mediation
If all of the parties can come to a settlement agreement, then the court may accept it. However, the court is not required to accept it because the Wills Variation Act gives discretion to the judge to determine the case.
As for mediation, parties may be required to attend mediation at the request of others to attempt to come to a settlement.
Making your case
Once proceedings are under way, the parties will make their cases to the judge. This includes making arguments in your favour and presenting evidence to support them. Evidence can include your own testimony and that of others as well as physical evidence or documents. The judge has the discretion to decide which evidence is and is not proper.
Some of the evidence likely to be submitted by the executor or administrator of the estate is any information or document about the intentions of the deceased and their reasons for excluding someone from their will or limiting their share of the estate. The judge will consider this along with all the rest of the evidence.
The judge may decide not to vary the will at all. However, if the judge does decide to vary the will, either a series of payments or single lump sum payment to the claimant from the estate will be ordered.
Any of the parties can appeal the judge’s decision to the British Columbia Court of Appeal if they disagree with the judge’s reasoning.