Understanding Will Variation in British Columbia
When a loved one passes away, their will dictates how their estate is distributed. However, in British Columbia, the law recognizes that a will may not always be fair to certain beneficiaries. Under the Wills, Estates and Succession Act (WESA), the court has the power to vary a will if it does not adequately provide for the spouse or children of the deceased.
What is Will Variation?
Will variation is the legal process where a spouse or child of the deceased applies to the court to have a will changed or modified because they believe it does not provide adequate, just, or equitable support.
Who Can Apply for a Will Variation?
Only specific individuals are eligible to challenge a will in BC:
Spouses – This includes legally married spouses and common-law spouses who lived with the deceased for at least two years before their passing.
Biological and Adopted Children – Children of the deceased, including legally adopted children, can challenge the will. However, stepchildren and other dependents who were not legally adopted do not have standing to apply.
Common Reasons for Will Variation Claims
Some of the most common situations that lead to will variation claims include:
Disinheritance of a spouse or child – If a person has been left out of a will entirely, they may have grounds to challenge it.
Unequal distribution – If one child receives a significantly larger share of the estate than others, a claim may arise.
Failure to provide for a spouse – A surviving spouse may seek a greater share of the estate if they were left with inadequate support.
Verbal promises not reflected in the will – If the deceased made promises to provide for someone but did not include them in their will, the court may consider this.
Grounds for a Will Variation Claim
A will can be varied if it does not make adequate provision for the spouse or children of the deceased. The court considers the following factors when deciding whether to vary a will:
Financial need of the applicant
Relationship between the deceased and the applicant
Size and nature of the estate
Contributions made by the applicant to the estate or to the deceased’s well-being
The reasons stated in the will for disinheriting a spouse or child
Final Thoughts
BC’s will variation laws offer protection to spouses and children who have not been adequately provided for in a will. While the process can be emotionally and legally challenging, it ensures that fairness and legal obligations are upheld in estate distribution. If you are considering a will variation claim, it’s important to act quickly and seek professional guidance to navigate the legal process effectively.
