The Wills Variation Act (the Act) allows a judge to find that a claimant’s character or conduct before the deceased’s death was so bad that they should not get the benefit of a variation of the will. This can be done even if it is decided that the provision in the will to the claimant was not adequate.
This comes from subsection 6(b) of the Wills Variation Act, which states that “the court may[…] (b) refuse to make an order in favour of a person whose character or conduct, in the court’s opinion, dis-entitles the person to the benefit of an order under this Act.”
The relevant time frame for this section of the act is before the deceased’s death. The character and conduct of the claimant after the death is irrelevant to the judge.
How does this happen?
Before this can become an issue in a case, the claimant first has to prove that they were not adequately provided for in the will. Once that is demonstrated, if another party thinks that the judge should dis-entitle the claimant due to their behaviour, they will need to prove it. For example, if a disinherited son successfully shows that his mother’s will should be varied in his favour, his sister, to whom the entire estate was given in the will, could claim that the son was cruel and disrespectful to their deceased mother. If the sister’s argument was strong and she had good evidence, then the judge could decide not to vary the will in favour of the son.
What does this mean for spouses who are making claims?
Short marriages, marriages of convenience, the start of divorce proceedings, and even adultery do not automatically mean that the spouse is barred from making a successful claim. In the case of adultery, it will be considered as one element of the argument, but it does not determine the claim on its own. Similarly, a signed agreement between the spouses stating that they will not use the Wills Variation Act will be considered, but is not binding on a judge.
The strongest argument to dis-entitle a spouse is desertion. This means that the spouse making the claim had abandoned the deceased and their marriage. This could be the case if, for example, a wife permanently left her husband and took up a long-term relationship with someone else.
What does this mean for children who are making claims?
A child of the deceased may be dis-entitled from benefiting from the Wills Variation Act if there was a serious breakdown in their relationship with the deceased. This would not be automatic and the role of the deceased in the breakdown would also be considered. If the breakdown was mostly due to the unfounded cruelty or neglect of the parent, then the case for the claimant would be stronger.
However, if the child played a major role in the breakdown, made it much worse, neglected, or abandoned the parent, then their case would be weaker. Extremely bad misconduct by the child will also make their case weaker, but the behaviour generally has to be extreme – choosing to marry someone not approved by the parent or being unemployed and misguided, for example, would likely not be enough.
