What can a court order in a wills variation claim in British Columbia?
This answer covers the law of British Columbia.
If a BC court finds a will does not make adequate provision for the proper maintenance and support of a spouse or child, it may order the provision it thinks adequate, just and equitable in the circumstances to be made out of the estate. That can be a lump sum, periodic or other payments, a transfer of property, or a trust.
Under Tataryn, that standard is measured by legal obligations, meaning what the law would have required of the will-maker during life, and moral obligations, meaning a judicious person's duties by contemporary community standards. If the estate cannot cover every claim, legal claims generally come before purely moral ones. The court may also consider evidence of the will-maker's reasons for a gift or lack of one.
The court may attach conditions or refuse relief for disentitling conduct. Unless it orders otherwise, payments are borne rateably by the estate. It may suspend administration or exempt part of the estate. Costs generally go to the successful party unless the court orders otherwise. Which of these applies depends on the facts, so a lawyer can help you confirm.
Key takeaways
- The court can order a lump sum, periodic or other payments, a transfer of property, or the creation of a trust.
- Under Tataryn, adequacy is measured by legal obligations and moral obligations, and legal claims generally take precedence over purely moral ones when the estate falls short.
- The court may refuse relief because of a person's character or conduct, and it may attach conditions to any order.
- Unless the court decides otherwise, payments are borne rateably by the estate, and the court may suspend administration or exempt part of the estate.