Wills, Estates and Succession Act
The Wills, Estates and Succession Act in BC: Explained by Tim Louis
By Tim LouisHave you been disinherited? It may be time to consider a Wills variation. Navigating the Wills, Estates and Succession Act in British Columbia can be complex, especially when it comes to dealing with the disinheritance or unequal treatment of beneficiaries. At Tim Louis & Company, we specialize in unpacking these complexities for our clients.
A Deep Dive into BC’s Wills, Estates and Succession Act
Under the Wills, Estates and Succession Act in British Columbia, certain individuals are given the opportunity to contest a will if they feel they’ve been unjustly excluded. This specific provision is under Section 60 of the Wills, Estates and Succession Act (WESA). The court may decide to vary a will if it does not provide sufficient provision for the proper maintenance and support of the will-maker’s spouse or children.
If the will fails to consider the needs of the will-maker’s spouse or children, these individuals can bring a claim to the court. The court can then order that just, fair, and adequate provision be made for them from the deceased’s estate. It’s important to remember, however, that only the surviving spouse and children of the will-maker can apply for a variation of a will under this act. The act does not extend these rights to other family members, such as siblings or parents, to contest a will.
The court’s decision to vary a will may result in a new distribution of assets to provide for the spouse or children in a way that it deems fair, just, and equitable. The court will consider various factors when making this decision, including the size of the estate, the needs of the spouse or children, and the will-maker’s testamentary intentions.
Dissecting “Adequate, Just and Equitable” Provisions in a Will
WESA’s Section 60 refers to the “adequate, just and equitable” provision – but what exactly does this mean? The Supreme Court of Canada’s ruling in Tataryn v. Tataryn Estate serves as the leading case and the governing authority on BC wills variation. The Court must ask itself whether the will makes adequate provision for the claimant and if not, order what is adequate, just, and equitable, in the circumstances.
Evaluating Reasons for Disinheritance or Unequal Division of an Estate
The court may take into account the will-maker’s reasons for disinheritance or for unequal division among beneficiaries when determining what is “adequate, just and equitable”. Evidence regarding the will-maker’s reasons for specific gifts in the will, or for making less than adequate provision for the Wills variation claimant, may be presented under Section 62 of WESA. In some cases, the will-maker’s express or inferred reasons may negate any moral obligation owed by the will-maker. The BC Courts’ approach to this starts with the consideration of the Court of Appeal decision in Bell v. Roy Estate.
The Doctrine of “Valid and Rational Reasons”
In the case of Bell, the will-maker left a will that unequally distributed her estate among her children. The Court of Appeal held that if the court finds the will-maker’s reasons for a disinheritance to be valid and rational, the will-maker’s moral duty towards that child is negated. The will-maker’s reasons for disinheriting a child need not be “justifiable”, but rather, the law only requires that the reasons are valid, meaning based on fact, and rational, signifying that there is a logical connection between them and the act of disinheritance.
The Intersection of Case Law and Tataryn
A complex issue arises when comparing the doctrine of valid and rational reasons (as used in Bell and Kelly) with the principles established in Tataryn. Tataryn emphasizes that a will-maker’s moral duty must be assessed objectively from the standpoint of what a reasonable parent would do in the circumstances, based on contemporary community standards.
If the decisions of Bell and Kelly mean that the test is whether a will-maker has valid (i.e., factually true) and rational (i.e., logically connected to the disinheritance) reasons for disinheriting a child, even where the reasons are not worthy of a judicious parent based on contemporary standards, they are difficult to reconcile with the fundamental principles of Tataryn and the search for contemporary justice in the circumstances.
Final Thoughts on The Wills, Estates and Succession Act
The Wills, Estates and Succession Act in British Columbia is a critical legal instrument that ensures fairness for spouses and adult independent children who may have been unfairly left out of a will.
If a loved one’s Will doesn’t seem to reflect a fair distribution, whether it’s due to a history of family or elder abuse, or perhaps cultural norms that favor male heirs, the BC Wills, Estates and Succession Act can be a beacon of hope. It provides a pathway for justice and equity to prevail, allowing surviving family members the opportunity to contest the terms of the will.
In essence, this law is here to ensure that every spouse and adult child’s right to a fair share is upheld, regardless of the circumstances surrounding their disinheritance. It’s a helping hand in challenging times, providing a way to seek justice and fairness in the distribution of a loved one’s estate.
Understanding the Wills, Estates and Succession Act and the grounds for contesting a Will is essential for anyone planning their estate or who may be a potential beneficiary of a Will. If you’re in need of advice on how to navigate this complex process, whether it’s contesting a will or planning your estate, Tim Louis & Company is here to help.
We ensure that your interests are well represented and that you are adequately provided for in the future. Don’t hesitate to reach out to Tim Louis at (604) 732-7678 for a no-fee telephone consultation. We will answer all your questions, no matter how complex.
Frequently Asked Questions
In British Columbia, a Wills Variation is a legal process that allows certain close family members of the deceased to challenge or "vary" the distribution of an estate if they feel that the will does not adequately provide for them. This is outlined in BC's Wills, Estates and Succession Act.
The ability to apply for a Wills Variation in BC is limited to the deceased's spouse and children (including both biological and adopted children). If you are a common-law spouse, you're also eligible to apply if you were living with the deceased in a marriage-like relationship for at least two years prior to their death.
Time is important in these matters! In British Columbia, you have 180 days from the date the Grant of Probate is issued to file a Wills Variation claim. It's crucial not to miss this deadline, or you might lose your right to vary the will. It's always a good idea to seek legal advice as soon as possible if you're considering this.
The court considers whether the deceased has met their "moral duty" to provide for their spouse and children in the will. If the court finds that the will does not adequately provide for the proper maintenance and support of these individuals, it can order a "variation" or change in the will to ensure fair distribution.
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