wills variation in British Columbia
In British Columbia, the Wills, Estates, and Succession Act (WESA) governs how a deceased person’s estate is distributed. One aspect of WESA that is important to consider is the process of wills variation.
Under WESA, a wills variation claim can be made by certain individuals who believe that the deceased person’s will does not provide adequate support for them. These individuals include the deceased person’s spouse or children, as well as anyone else who was financially dependent on the deceased person. Essentially, if a person owed you a legal and moral obligation during their lifetime, it does not cease just because they have passed.
A wills variation claim is distinct from a claim that a will is not valid. It does not require the claimant to show that the will does not reflect the deceased’s intentions, that the deceased did not have the capacity to execute the will, or that the deceased were unduly influenced into signing the will. The claimant is not questioning the validity of the will, they are claiming that the will did not adequately provide for them.
The purpose of a wills variation claim is to ensure that reasonable provision is made for the claimant out of the deceased person’s estate. This means that if a will does not adequately provide for a claimant, the court can order that the will be varied to provide for them. For example, if a person who pays child support passes without making any provision for their minor children, the will can be varied to make adequate provision for the children.
When considering a wills variation claim, the court will take into account a number of factors, including the size of the estate, the financial needs and circumstances of the claimant, the relationship between the claimant and the deceased person, and the deceased person’s reasons for excluding the claimant. For example, the courts will consider varying a will where a party has been excluded due to their gender or sexual orientation.
It’s important to note that a wills variation claim can only be made within a certain timeframe. In British Columbia, the claim must be made within 180 days of the grant of probate (or administration, if there is no will). If the claim is not made within this timeframe, the court may refuse to hear it.
In order to avoid the possibility of a wills variation claim, it’s important to carefully consider the contents of your will and ensure that it provides for all of your loved ones. This may involve seeking the advice of a lawyer or other professional who can help you draft a will that meets your wishes and is less likely to be challenged.
This blog post provides legal information, but is not a substitute for legal advice. If you have a question about wills variation, need help with estate planning or estate administration, or questions about another legal matter, contact Naz Khodarahmi for a complimentary consultation. You can book a consult through www.macushlaw.ca through our booking system or contact Naz at [email protected] or 604-612-8024.