- Section 60 of WESA lets the court order the provision it thinks adequate, just and equitable if a will does not adequately provide for a spouse or child.
- The Supreme Court of Canada measures that standard by legal obligations and moral obligations.
- Only a spouse or child can bring this kind of claim.
If a will does not make adequate provision for the proper maintenance and support of a spouse or child, British Columbia law gives the court a way to step in. The test it uses is expressed in three words: adequate, just and equitable.
Those words are not defined by a formula. This article explains where the standard comes from, how the Supreme Court of Canada has described it, and what else a court can consider.
This article covers the law of British Columbia.
Where the standard comes from
Under section 60 of the Wills, Estates and Succession Act (WESA), if a will-maker dies leaving a will that, in the court's opinion, does not make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may order that the provision it thinks adequate, just and equitable in the circumstances be made out of the estate.
Only the will-maker's spouse or children can bring this claim. The section names no other relatives, beneficiaries or interested persons. Whether a stepchild or grandchild can claim is a question that depends on how courts have read the section, so a lawyer should confirm it.
The remedy is written around a will, and on its face it is not a remedy against an intestacy.
The two norms: legal and moral obligations
In Tataryn v. Tataryn Estate, the Supreme Court of Canada held that the adequate, just and equitable standard is measured by two norms.
| Norm | What it asks |
|---|---|
| Legal obligations | What the law would have required of the will-maker during life |
| Moral obligations | Society's reasonable expectations of what a judicious person would do, judged by contemporary community standards |
The same decision speaks to priorities. Where the estate permits, all claims should be met. Where priorities must be set, claims based on legal obligations generally take precedence over purely moral claims, and some moral claims may be stronger than others.
In plain terms, the question is not simply whether the will was fair in your view, or whether the will-maker was free to leave property as they pleased. The court asks what a judicious person would have done, taking into account what the law required and what the community would reasonably expect.
Who counts as a spouse
Two people are spouses under WESA if they were married to each other, or had lived with each other in a marriage-like relationship for at least 2 years. Status is generally judged as of the date of death.
Exceptions apply. A former common-law partner whose relationship ended before the death is not a spouse who can claim. Married persons stop being spouses when an event occurs that gives rise to an interest in family property under the Family Law Act, such as separation. A reconciliation of at least 90 days in total, within one year, can prevent the parties being treated as separated.
For adopted children, the parent and child relationship created by adoption is determined under the Adoption Act, and an adopted child is not entitled to the estate of a pre-adoption parent except through that parent's will.
Evidence, conduct and remedies
The court may accept the evidence it considers proper about the will-maker's reasons for making or not making a gift. When weighing a statement of those reasons, it must consider all the circumstances from which an inference can reasonably be drawn about whether the statement is accurate.
The court may refuse an order to a person whose character or conduct, in its opinion, disentitles them to relief, and may attach any conditions it considers appropriate.
If the court varies a will, the provision may take the form of a lump sum, periodic or other payments, a transfer of property, or the creation of a trust. Unless the court decides otherwise, the payments are borne rateably by the estate. The court can also suspend administration of the estate, in whole or in part, and exempt part of the estate from the order.
What to do next
- Confirm that you are a spouse or child within the meaning of the Act.
- Find out the date the grant was issued in British Columbia. A claim must be started within 180 days of that date.
- Gather records of the will-maker's legal and moral obligations to you, such as support, dependence, needs and family history.
- Collect anything that shows the will-maker's reasons, such as letters or notes, since the court may consider evidence about those reasons.
- Speak with a BC wills and estates lawyer before the deadline passes.
Frequently asked questions
Does adequate provision mean an equal share?
No. The test is whether the provision is adequate, just and equitable in the circumstances. The Supreme Court of Canada has said that standard is measured by two norms: legal obligations and moral obligations.
Which obligation matters more, legal or moral?
Where priorities must be set, claims based on legal obligations generally take precedence over purely moral claims, and some moral claims may be stronger than others. Where the estate permits, all claims should be met.
Can the will-maker's stated reasons be challenged?
The court may accept evidence about the will-maker's reasons, and must consider all the circumstances that bear on whether a statement of those reasons is accurate. A stated reason does not end the matter.
What can the court order if the claim succeeds?
It can order a lump sum, periodic or other payments, a transfer of property, or the creation of a trust. It may also attach conditions.
Sources
- Wills, Estates and Succession Act, SBC 2009, c 13, s 60 (BC Laws) — bclaws.gov.bc.ca
- Tataryn v. Tataryn Estate, [1994] 2 SCR 807, 1994 CanLII 51 (SCC) — canlii.org
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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