Let Thy Will Be Done

Wills Variation

Your will may not be done if you attempt to cut your spouse or children out of your will. A statute called the Wills Variation Act of British Columbia states that an action may be commenced by a child or a spouse, which now includes a common-law spouse, against your estate. If you do not provide adequate provisions in your will your will may be challenged.

History of the Wills Variation Act

Historically the Act was enacted in 1920 and designed to prevent a spouse, usually the man, from disinheriting his wife. At the time it was not uncommon for totally inadequate provisions to be made for a wife in the hope that children would look after the wife. This was not always the case and a great deal of injustice was done.
Social programs were generally non-existent in those days.

The Modern Claim

Since the 1920's the courts have extended the circumstances in which the Act may be invoked and now even a self-supporting child who does not strictly require maintenance is deemed to have a moral claim against a sufficiently large estate. That obligation is based on society's reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards. As the moral claim will end up being interpreted by a judge, the issue of who has a moral claim and what the claim should be is subject to wide variation.

Often my clients are surprised to learn there are such provisions within the Wills Variation Act and they cannot get around the Act by giving a bequest of $1.00 or another token sum.

Disinheritance

An adult child may be disinherited if the reasons for doing so are valid and rational at the time of the testator's death. This validity has to be based on fact and has to be rational in the sense that there is a logical connection between the reasons and the act of disinheritance. I often tell my clients that they cannot disinherit due to suspicions of what their adult children are up to. Possible drug use or claims of immorality are often unlikely to be provable in a court of law as a fact. Obviously, if the child is in jail for fraud or drug trafficking, the situation is clear.

The facts have to provide a rational reason for disinheritance. Often I find that an adult child is disinherited due to a difference of opinion with the deceased on subject matters that are objectively unimportant. An example would be disinheriting a child due to a difference in political beliefs. Such differences are often transitory and unfortunately I have heard of cases where the person making the will has made up with the child but has not made a new will.

In considering what is fair, a court will consider the size of the estate, the legal obligations of the person making the will and what the spouse or child would have received in the absence of a will. Being fair is not necessarily being equal and the courts will respect an honest attempt by a testator to treat his or her spouse and children fairly.

Where there is disinheritance with no rational reason a court will likely order a variance and will also likely order that all the claimant's costs be paid out of the estate. 60% of these cases are successful. Poor planning will result in unnecessarily large legal bills, family conflict and the back sheep will probably get his or her bequest in the end.

Avoidance

Ways to avoid the Wills Variation Act are to give assets while you are alive, making sure that the intention of the gift is clearly expressed. Likewise, joint bank accounts, joint tenancies on houses and trusts may also be employed, as long as it is clear that a transfer is made of the property. Such transfers usually have tax and other legal ramifications that must be considered.