Omitted from a spouse’s or parent’s will? Will variation may be a remedy

Consider the deceased’s reasoning, their right to leave their bounty as they wish and their moral duty to support a surviving spouse or adult children.

When your spouse or parent died were you shocked to learn that you were not a beneficiary in their will? Or did you know the omission was coming but it feels unjust to you? In another scenario, did the division of assets in the will leave you with a share inadequate for your proper support?

In British Columbia, you may ask the court to vary the terms of the will, creating a distribution of assets that is fairer to you. Will variation is available under the provincial Wills, Estates and Succession Act (WESA). (See sections 60 through 72.)

Varying the terms of a will under WESA

WESA provides that if a court finds the will does not “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children,” the court may vary the will to create a distribution that is “adequate, just and equitable in the circumstances …” The court may accept and consider proper evidence of the deceased’s reasoning behind the will’s gifts or for inadequately providing for their spouse or child.

WESA also gives the court the discretion to deny relief to a spouse or child “whose character or conduct … disentitles” them to an order varying the will. For example, courts have disfavored adult children who have not maintained contact with their parents or helped with their care in declining years.

To qualify as a spouse, one must have been a spouse of the deceased as of the date of death. To qualify as a child, one must be a biological or adopted child of the deceased. Stepchildren who were not adopted by the deceased are unable to vary a will.

An example of will variation

BC courts have widely interpreted WESA. These cases have established a detailed framework for judges when they consider the unique circumstances that give rise to will variation claims.

On the one hand, the will-maker has the right to create their own testamentary gifts for their own reasons. On the other, the deceased has a “moral” duty to provide adequate support for these closest of family members. Courts must balance these sometimes competing interests when considering will variation requests.

The Court of Appeal for British Columbia case of Scurek v. Scurek provides an example. In that case, the father left half of his estate to his disabled adult son, who was financially sound and who had also received significant assets from his father that passed outside the will. The father left the other half of his estate equally among his daughter and her two adult children. The daughter had struggled with alcohol addiction and was economically unstable.

The trial court varied the will to provide one-half to the daughter, one-third to the son and one-twelfth to each grandson. On appeal, the court agreed that the will did not provide adequate support for the daughter but concluded that giving more to the daughter than the son interfered to an “unnecessary degree” with the father’s testamentary “autonomy in the disposition of his estate.”

The Court of Appeal re-apportioned the gifts. It left one-twelfth to each grandson and split the remainder equally between the adult children, which it felt was “adequate, just and equitable in the circumstances.” Some of its observations and findings include:

• Adequacy of spousal and children’s gifts are determined by the circumstances at the time of death or reasonably foreseeable at that time.
• In the case of an independent adult child, the court looks at the parent’s moral duties toward their children.
• Relevant factors include the size of the estate, the needs of the children, the reasons for the decedent’s bequests and the history of the parent-child relationship.
• The revised division of the estate would “allow for [the daughter’s] good housing and necessaries of life for a considerable span of years.”

Seek legal guidance

If you find yourself questioning your treatment in the will of your deceased spouse or parent, or if you face a will variation claim that would challenge your gift under a will, seek legal advice from an experienced BC lawyer about your legal options as soon as possible.