Wills Variation in British Columbia When Assets Pass Outside the Estate

You may have learned that a parent or spouse held most of their property jointly, named someone on an account or policy, or placed assets in a trust. What is left in the estate can look very small, and you may wonder whether a wills variation claim is still worth pursuing.

This article explains what the wills variation power is aimed at, why the size of the estate matters, and what you can do now. It does not decide whether any particular asset can be reached. That turns on how the asset was held and the documents behind it.

This article covers the law of British Columbia.

What a wills variation order is made from

Under section 60 of the Wills, Estates and Succession Act (WESA), the court may find that a will does not make adequate provision for the proper maintenance and support of the will-maker's spouse or children. If so, it may order that the provision it thinks adequate, just and equitable be made out of the estate.

If the court varies a will, it may order a lump sum, periodic or other payments, a transfer of property, or the creation of a trust. Unless the court decides otherwise, those payments are borne rateably by the will-maker's estate.

Why assets outside the estate matter

The wording of the statute points to the estate. That is why it matters whether an asset forms part of the estate or passes some other way.

Assets that commonly pass outside a will include:

• Property held jointly with another person that passes to the survivor
• Accounts, policies or plans with a named beneficiary
• Assets already placed in a trust before death

Whether the court can take any of these into account, or reach them, depends on how the asset was held, when and why the arrangement was made, and the other facts. Do not assume either way. A lawyer can review the documents and tell you how they apply to your situation.

Who can bring the claim

Only the will-maker's spouse or children can bring a wills variation claim. The section names no other relatives or beneficiaries. It is written around a will-maker who dies leaving a will, so on its face it is a remedy against a will and not against a death without a will.

Two people are spouses if they were married, or if they had lived together in a marriage-like relationship for at least 2 years. Spousal status is generally judged at the date of death. 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.
• A marriage-like relationship stops counting once one or both people end it, so a former common-law partner whose relationship ended before the death cannot claim as a spouse.
• Spouses are not treated as separated if, within one year, they resume living together mainly to reconcile, for one or more periods totalling at least 90 days.

Deadlines and protecting land

A wills variation claim must not be heard unless the proceeding is started within 180 days from the date the grant (probate or administration) is issued in British Columbia. A copy of the initiating pleading must be served on the executor no later than 30 days after that period expires, unless the court extends the time for service.

Within 10 days after the pleading is issued, the claimant may register a certificate of pending litigation against land affected by the claim. A personal representative must not distribute the estate within 210 days after the grant is issued unless the court orders otherwise. Distribution can happen earlier if all beneficiaries and all people who may bring a wills variation claim consent.

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

• Note the date the grant was issued, since the deadlines run from it.
• Gather the will, any account or policy statements, property titles and trust documents you can find.
• Search Court Services Online for probate cases by the deceased's name to see whether a file exists.
• List every person who might be a spouse or child of the will-maker.
• Speak to a lawyer promptly about which assets may be reached and whether to file.

Frequently asked questions