What Can a BC Court Order When It Varies a Will?

If you are a spouse or child of someone who has died, and you believe their will left you too little, you may be wondering what a court can actually do about it. A successful wills variation claim does not rewrite the whole will. It changes the result enough to provide for you.

This article explains the kinds of orders a British Columbia court can make, who ends up paying for them, and the protections and deadlines that surround a claim. It is general information, and a lawyer can tell you how it applies to your situation.

This article covers the law of British Columbia.

The starting point: adequate, just and equitable provision

Under section 60 of the Wills, Estates and Succession Act (WESA), if the court finds that a will does not make adequate provision for the proper maintenance and support of the will-maker's spouse or children, it may order 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 kind of claim. The section does not name other relatives, beneficiaries or interested persons. Spousal status is generally judged as of the date of death. Married spouses stop being spouses for WESA purposes when an event such as separation occurs, and a former common-law partner whose relationship ended before the death is not a spouse who can claim. However, spouses are not treated as separated if, within one year, they resume living together mainly to reconcile and do so for one or more periods totalling at least 90 days.

The forms an order can take

If the court varies a will, section 64 lets it decide how the provision is delivered. The options are:

• A lump sum payment.
• Periodic or other payments.
• A transfer of property.
• The creation of a trust.

Which form fits depends on the facts, such as what the estate holds and what the person needs. For example, a trust may suit a situation where ongoing support matters more than a single payment, but the court decides case by case.

How the court sizes the award

The Supreme Court of Canada has said the adequate, just and equitable standard is measured by two norms. The first is legal obligations, meaning what the law would have required of the will-maker during life. The second is moral obligations, meaning society's reasonable expectations of what a judicious person would do, judged by contemporary community standards.

Where the estate allows, 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.

The court may also accept the evidence it considers proper about the will-maker's reasons for making or not making a gift. When it weighs a statement of reasons, it must consider all the circumstances from which an inference can reasonably be drawn about whether the statement is accurate.

Who bears the cost, and what else the court can do

Unless the court decides otherwise, payments under a wills variation order are borne rateably by the will-maker's estate. If the court's authority does not reach the whole estate, that rule applies only to the part located in British Columbia.

The court also has flexibility over how the estate is handled while this happens. It may suspend administration of the estate, in whole or in part, and may exempt part of the estate from the order, on any terms or conditions it considers appropriate.

The court is not required to grant relief. It may refuse an order to a person whose character or conduct, in its opinion, disentitles them to relief, and it may attach any conditions it considers appropriate to an order.

Protections and deadlines during a claim

• Certificate of pending litigation: within 10 days after the initiating pleading is issued, a claimant may register a certificate of pending litigation against land affected by the claim.
• Distribution hold: a personal representative must not distribute the estate within 210 days after the grant is issued, unless the court orders otherwise. The estate may be distributed earlier if all beneficiaries and all persons who may bring a wills variation claim consent.
• One claim for all: a proceeding brought by one person may be treated as brought for all persons who might apply, and for limitation purposes it is conclusively deemed to be brought on behalf of all of them.
• Filing deadline: the proceeding must be started within 180 days from the date the grant is issued in British Columbia.
• Service deadline: a copy of the initiating pleading must be served on the executor no later than 30 days after the 180-day period expires, unless the court extends the time for service.

If the will-maker has minor children, or a spouse or child is mentally incapable, the pleading must also be served on the Public Guardian and Trustee, or the claim will not be heard.

What to do next

• Find out the date the grant of probate or administration was issued, since the 180-day clock runs from it.
• Gather a copy of the will, a list of the estate's assets, and any records showing your relationship with the will-maker.
• Note whether any land is involved, because the 10-day window for a certificate of pending litigation is short.
• Check whether any minor or incapable family members are involved, as that affects who must be served.
• Speak with a lawyer early about the deadlines and what outcome is realistic.

Frequently asked questions