Wills Variation Claims Under Section 60 of WESA in BC

Section 60 of the Wills, Estates and Succession Act (WESA) is the part of British Columbia law people mean when they talk about a wills variation claim. It lets certain family members ask the court to change a will that does not provide for them properly.

This article explains what the section says, who can use it, how the process works and what the court can order.

This article covers the law of British Columbia.

What section 60 says

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.

The wording is about a will-maker who dies leaving a will, and section 61 refers to the executor of the will. On its face it is a remedy against a will, not against a death without a will. The Public Guardian and Trustee notes that only the court can vary a will, although capable adults may sometimes agree among themselves to distribute an estate differently.

Who can claim

Only the will-maker's spouse or children can bring the claim. Spouse means married, or living together in a marriage-like relationship for at least 2 years, generally judged at the date of death. Separated married spouses and former common-law partners may not count, although a reconciliation of at least 90 days within one year can change the picture for married spouses. An adopted child is not entitled to the estate of a pre-adoption parent except through that parent's will.

How the court decides

The Supreme Court of Canada, in Tataryn v. Tataryn Estate, held that the adequate, just and equitable standard is measured by two norms: legal obligations, meaning what the law would have required of the will-maker in life, and moral obligations, meaning society's reasonable expectations of what a judicious person would do by contemporary community standards. Where the estate permits, all claims should be met. Where priorities must be set, legal obligations generally come before purely moral claims.

• Reasons: the court may accept the evidence it considers proper about the will-maker's reasons for making or not making a gift, and must weigh all the circumstances bearing on whether a statement of reasons is accurate.
• Conduct: the court may refuse an order to a person whose character or conduct disentitles them to relief, and may attach conditions to an order.

Deadlines and steps

A claim brought by one person may be treated as brought for all who might apply, and for limitation purposes is conclusively deemed to be brought on behalf of all of them. To protect this window, a personal representative must not distribute the estate within 210 days after the grant unless the court orders otherwise. Distribution earlier is possible if all beneficiaries and all persons who may bring a claim consent.

What the court can order

If the court varies a will, the provision may be a lump sum, periodic or other payments, a transfer of property, or the creation of a trust. Unless the court decides otherwise, payments are borne rateably by the estate, and if the court's authority does not reach the whole estate, only the part in British Columbia is covered. The court may also suspend administration of the estate and exempt part of it from an order.

On costs, the successful party is generally awarded costs unless the court orders otherwise. Estate cases can differ, so ask a lawyer how costs might apply to you.

What to do next

• Confirm you are a spouse or child within the meaning of the Act.
• Record the date the grant was issued and count 180 days forward.
• Check whether the Public Guardian and Trustee must be served.
• Collect the will, financial information about the estate and evidence of your relationship and needs.
• Get legal advice quickly, because the deadlines are short.

Frequently asked questions