Whether you are a child who has been disinherited and left out of your mother or father’s will, a spouse who has been left less than you feel is fair, or a beneficiary who discovers that many assets have been transferred outside of an estate, I can provide you with your options and help you develop an estate litigation strategy that is right for you.
As a lawyer who specializes in estate planning and litigation, I often encounter clients who are concerned about the possibility of their will being challenged or contested by their spouse or children after their death. In British Columbia, the law gives the court the power to vary the terms of a will if it finds that the will-maker did not make adequate provision for their spouse or children. This article will explain the basics of wills variation claims, the factors that the court considers, and some strategies to avoid or minimize such claims.
A wills variation claim is a legal action brought by a spouse or child of a deceased person who is disinherited or dissatisfied with the distribution of the estate under the will. The claimant can contest the will and ask the court to order that a different provision be made out of the estate for their benefit. The court has discretion to make an order that the judge considers just and equitable in the circumstances, which may include increasing, decreasing, or changing the nature of the gifts under the will.
Under section 60 of the Wills, Estates and Succession Act (WESA), only two categories of people can make a wills variation claim: the spouse or children of the deceased person. The term “spouse” includes married spouses and common-law spouses who lived with the deceased person in a marriage-like relationship for at least two years before death. The term “children” includes biological children and adopted children, but not step-children who were not adopted. Therefore, step-children will usually not be able to bring a claim to vary a will.
A wills variation claim must be commenced within 180 days after the grant of probate, administration, resealing, or ancillary grant of probate or administration is issued by the court. Probate is the legal process of proving and validating a will in court. By allowing only 180 days to file a claim, the legislation allows claims to be brought but not unduly delay the administration of estates. A grant of probate or administration is sometimes obtained by an executor of an estate that does not otherwise require an estate grant in order to start the time to file a claim running.
The court’s main objective in a wills variation claim is to determine whether the will-maker made adequate provision for their spouse or children, taking into account all relevant factors. Some of these factors are:
The court will weigh these factors in light of contemporary societal norms and expectations, as well as any evidence of the will-maker’s own intentions and reasons.
Assets that are not part of the estate and not subject to a wills variation claim include:
A will-maker who wishes to avoid or minimize a wills variation claim by their spouse or children should take some precautions when planning their estate. This can include moving their assets into one of the classes of assets not part of the estate described above, however, there can be drawbacks to doing so. Seeking legal advice from an experienced estate lawyer who can draft a clear and valid will that reflects your wishes and reasons for your estate plan can be important when addressing potential wills variation claims.
However, these precautions are not foolproof and may not prevent a wills variation claim from being made or succeeding. Therefore, it is important for a will-maker to be aware of the potential risks and consequences of their estate plan and to seek professional guidance if they have any doubts or concerns.
It’s important to note that the variation of a will process in British Columbia can be legally complex and may involve significant time and expense. It’s advisable to consult with a lawyer who specializes in estate and probate matters if you are considering challenging or contesting a will or seeking a variation of a will.
The process begins with a thorough consultation with the client. Your lawyer gathers information about the your situation, goals, and concerns. This includes reviewing any information about the creation of the will, family circumstances, beneficiaries of the will-maker’s estate and any other relevant information.
Depending on whether you are the plaintiff (initiating the lawsuit) or defendant (responding to a lawsuit), your lawyer will draft and file the necessary legal documents called a pleading, such as a complaint or an answer. A pleading is a formal written document that sets out the claims, defences, and allegations of the parties involved in a lawsuit. Pleadings play a crucial role in the litigation process as they define the issues in dispute, establish the legal framework for the case, and provide notice to all parties about the nature of the claims and defences.
The parties in a wills variation claim will generally include:
Document production in litigation is a critical phase of the discovery process where parties involved in a lawsuit are required to exchange relevant documents and information. This process aims to promote transparency, ensure fairness, and allow each party to build its case based on the available evidence.
Examination for discovery, also known as a deposition in some jurisdictions, is a crucial pre-trial procedure in civil litigation that allows parties to a lawsuit to obtain information and evidence from each other’s witnesses and parties. The purpose of an examination for discovery is to allow the parties to gather evidence, clarify facts, and assess the strength and weaknesses of their case.
Preparing for a trial is a complex and multifaceted process that involves careful planning, legal research, document review, witness preparation, and strategy development.
The goal of the process of preparing for a trial in a legal case is to effectively present one’s case, advocate for one’s legal position, and ultimately achieve a favorable outcome for the client.
Following a trial a judge will issue a judgment determining whether the will should be varied and to what extent based on what is “adequate, just and equitable” according to contemporary standards. All claims by eligible individuals should be met if the size of the estate so permits.
Ways to challenge or contest a will in British Columbia