Estate Legal Services by Lawyer Tim Louis
The Wills, Estates and Succession Act (WESA) ensures that children, including adult children, and spouses are looked after in the event of death of a parent or spouse.
Tim Louis uses his decades of experience in Estate Law to ensure that people get the support they need if the deceased has not adequate provision in their Wills for a spouse or children. He does this by making a court application to vary the deceased’s Will. If the deceased has not made adequate provision for you, and you are a surviving spouse or child, including an adult child of the deceased, Tim Louis will ask the court to vary the deceased’s Will.
Wills Variation Act vs Wills, Estates and Succession Act – BC LawThe Wills Variation Act used to be the act that could gain surviving spouses or children of a deceased the right to apply to court to have the deceased’s Will varied, if the deceased’s Will did not provide adequate support for that spouse or child.
The Wills Variation Act BC has been replaced by Wills, Estates and Succession Act (WESA).
Navigating the complex world of the court application to vary a Will requires the experience of a seasoned lawyer, like Tim Louis.
WESA: Wills, Estates and Succession Act BC
Here are some of the WESA highlights:
- Under WESA, a parent has a moral obligation to make adequate provision for their child or children, including an adult child or adult children. A spouse has a moral obligation to make adequate provision for their spouse.
- Under WESA, you must start your court action within 180 days after the grant of probate has been issued to the executor. This ensures the executor can distribute the estate without fear of further claims, within a timely manner.
- Even estranged children can apply to court to have the deceased’s Will varied unless the deceased parent left details and sufficient reasons for the exclusion.
- Unless there is a good reason, a parent cannot divide the estate unequally among her or his children
- However, if a child has exceptional needs and/or a disability, then the equal distribution of the estate among all children can be challenged.
Reasons for Wills Variation
McBride v. Voth 2010 BCSC 443 and the Moral Duty of the Testator Summary:
The Will Maker was an elderly woman whose husband had pre-deceased her. She had three adult children. The oldest of the three adult children had never left home and provided a great deal of assistance to the Will Maker in her older years.
The Will Maker left a life estate in her home to that adult child. As the estate consisted almost entirely of the Will Maker’s home, the other two children would not inherit until the death of the of the oldest adult child/life tenant.
The other two children applied to court to have the Will Maker’s will varied. The court agreed to do so. The court ruled that the oldest child would not have a life estate but instead could only live rent free in the Will Maker’s home for three years, at which time the home would be sold and divided equally among the three adult children.
The court laid out the following six criteria for a court to consider a deciding whether or not to vary a will. (Not all of these criteria apply to the McBride v. Voth 2010 case):
- Contribution and Expectation: If children made contributions to the estate or cared for the deceased, there may be bona fide expectation that children will receive benefits
- Misconduct and Poor Character: A person’s conduct or character may disentitle them
- Estrangement Neglect: If estrangement is the fault of the Will Maker, there is a moral duty to provide for the estranged child
- Gifts And Benefits Made by the Will Maker Outside of the Will: The moral duty of the Will Maker to make adequate provisions for a spouse or child may be fulfilled if the Will Maker left things to that spouse or child outside of the Will.
- Unequal Treatment of Children: If there is no relevant reason for unequal distribution, children should inherit equally
- Will Maker Reasons for Disinheritance/Subordinate Benefit: If the Will Maker’s reasons for disinheriting a spouse or child are inadequate, then that child or spouse may make application to have the Will Makers Will varied.
How is the Estate Distributed under WESA if there is no Will?
If there is no Will, WESA makes the following provisions for estate distribution:
- If there is a spouse but no children, the estate goes to the spouse.
- If there is a spouse and children, the spousal share should be $300,000, plus half of the remainder of the estate, and the remainder will be distributed equally to the children.
- If there is a spouse and former spouses, the court will determine the share if no agreement can be reached.
- If there is no spouse but there are children, it goes to the children equally first
- If there is no spouse and no children, the estate goes to the deceased’s parents, then grandparents, etc.
Tim Louis has over four decades of experience applying to court to vary Wills. If your spouse or parent has not made adequate provision for you in their Will contact Tim Louis immediately. You cannot make a court application to vary the Will Maker’s Will more than 180 days after the Grant of Probate has been issued.
Frequently Asked Questions
1.When can you apply to Court for a court order to vary the Will of a deceased Will Maker?
If your parent or spouse dies without having made adequate provisions for you in their Will, then you can hire a lawyer to make application to vary the Will.
What is adequate provision?
Every case is different and dependent on the facts. You have a strong case if your parent leaves her/his estate unequally among her/his children (including adult children) unless the child who is left a larger share has unique needs such as a disability.
You also have a strong case if your spouse did not leave you a large enough inheritance to look after your needs, it the estate was large enough to do so.
If there is an unequal distribution amongst the children, a lawyer will ask a judge to vary the Will to make the distribution equal. And if the parent did leave her/his estate equally divided amongst her/his children (including adult children), if one of the children has special needs such as a disability, that person will normally be successful in obtaining a court order to vary the Will, such that the estate is not divided equally, but instead a larger share is left to the child with special needs.
2. Who can contest a Will in British Columbia?
Under WESA, you can contest a Will if you are a child, including an adult child, and your parent has not made adequate provision for you in their Will or if you are a spouse, and your spouse has not made adequate provision for you in their Will.
If the Will Maker was not of sound mind or was under undue influence when she or he made the Will, then the Will can be challenged and not just by a child or spouse of the Will maker. If you were named as a beneficiary in a Will and the deceased signed a new Will that excluded you, you may wish to challenge the new Will if the Will Maker was not of sound mind or was under undue influence when she or he made the new Will.
You will need to show that the Will maker was not of sound mind or were under undue influence when she or he made the new Will. This is not a variance of the new Will, but a case where your lawyer would ask the judge to nullify or void the new Will so that the old Will becomes the Last Will.
3.When will BC courts deny a court application to vary a Will?
BC Courts will deny a Wills Variation Claim if adequate provision has been made for the party asking for provision by the deceased.