The Tataryn Test for Wills Variation in British Columbia

If you are a spouse or child who feels a will left you too little, you will keep running into one name: Tataryn. It is the Supreme Court of Canada decision that British Columbia courts have long used to decide what a fair provision looks like in a wills variation claim.

This article explains the test in plain words, how its two kinds of obligation fit together, and what else shapes a claim. How a court weighs these ideas turns heavily on the facts of each family, so treat this as background and not a forecast.

This article covers the law of British Columbia.

Where the test comes from

Section 60 of the Wills, Estates and Succession Act (WESA) lets the court order that adequate, just and equitable provision be made from an estate when a will does not make adequate provision for the proper maintenance and support of the will-maker's spouse or children.

The words "adequate, just and equitable" are broad. In Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), the Supreme Court of Canada explained that this standard is measured by two norms. Those two norms are the core of what people mean by the Tataryn test.

The two norms: legal and moral obligations

The moral side is not about what you personally feel you deserve. It asks what the community would reasonably expect, which is why two families with similar wills can end up with different outcomes.

How competing claims are ranked

Tataryn also deals with what happens when more than one person has a claim. Where the estate is large enough, all claims should be met. Where priorities have to be set, claims based on legal obligations generally take precedence over purely moral claims, and some moral claims may be stronger than others.

In practice, this matters most in modest estates, where meeting one person's claim leaves less for another.

What else shapes a claim today

Tataryn is the starting framework, but a court looks at the whole picture. How later decisions treat adult children, estrangement, or relatives such as stepchildren and grandchildren depends on the facts and is worth discussing with a lawyer who can check the current case law.

• Reasons: the court may accept the evidence it considers proper about why the will-maker made or did not make a gift, and it must weigh any statement of reasons against all the circumstances that bear on whether it is accurate.
• Conduct: the court may refuse an order to a person whose character or conduct, in its opinion, disentitles them to relief, and may attach conditions to an order.
• Form of relief: an order can be a lump sum, periodic or other payments, a transfer of property, or the creation of a trust.
• Who bears it: unless the court decides otherwise, payments are borne rateably by the estate.

Who can claim, and the clock

Only the will-maker's spouse or children can bring the claim. Two people are spouses if they were married, or had lived together in a marriage-like relationship for at least 2 years.

There are exceptions. Married spouses stop being spouses for WESA purposes when an event such as separation gives rise to an interest in family property under the Family Law Act. Spouses are not treated as separated if, within one year, they resume living together mainly to reconcile and do so for periods totalling at least 90 days. An unmarried partner whose relationship ended before the death is not a spouse who can claim.

The claim must be started within 180 days from the date the grant is issued in British Columbia. The pleading must be served on the executor no later than 30 days after that period expires, unless the court extends the time for service.

What to do next

• Find out the date the grant of probate or administration was issued, because the 180 days run from it.
• Get a copy of the will and note who the executor is.
• Write down your relationship to the will-maker, any support you received, and any reasons the will-maker gave for the gifts.
• Remember that the estate generally cannot be distributed within 210 days of the grant unless the court orders otherwise or all interested people consent.
• See a lawyer early, since the deadline is short and extra people may need to be served.

Frequently asked questions