Understanding the Wills, Estates and Succession Act and the Former Wills Variation Act
The laws surrounding estate litigation can become complicated, especially when we throw in historical timelines, modern updates, and the idea of what is just and what isn’t. But having that fundamental understanding of the British Columbia laws surrounding wills variation will put you in a position to better understand your rights and your loved one’s wishes. Klein Lawyers explains the Wills Variation Act and the Wills, Estates and Succession Act.
What Is the Wills Variation Act?
The former Wills Variation Act is no longer in existence. That legislation is now contained in section 60 of the Wills, Estates and Succession Act (WESA), which establishes the maintenance provision in estate litigation.
Under section 60 of WESA, “Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.” The former Wills Variation Act contained similar language.
The adequate provision element was further explored in the case, Tataryn v. Tataryn Estate (1994), where a wife contested the terms of her late husband’s will that passed ownership of the matrimonial home and a rental property owned by the married couple to one of their sons. In using the former Wills Variation Act, the court found:
- The court must determine whether the will “makes adequate provision for the proper maintenance and support” of the applicant. If the will does not, the court will order what it thinks to be “adequate, just and equitable.”
- The test of “adequate, just and equitable” is that of the “judicious father of a family seeking to discharge both his marital and his parental duty” as set out in Walker v. McDermott,  SCR 94 and should be determined according to contemporary standards;
- Courts must now also consider legal and moral obligations; “Legal obligations” to a spouse consist of those that would have been imposed by the law if maintenance and property division were considered during the will-maker’s lifetime. “Moral obligations” were not defined by the Court but appear to include those factors that had guided the Court’s discretion in the cases prior to Tataryn. Both are legally binding conditions.
While historical cases are mostly concerned with the Wills Variation Act in estate litigation disputes, it is likely that these legal elements apply equally to s. 60 of the Wills, Estate, And Successions Act.
What Is The Wills, Estates and Succession Act?
The Wills, Estates and Succession Act (WESA) took the laws which surrounded the disbursement of estates and created one seamless document in 2014. What we now refer to as WESA is created from the Wills Act, Wills Variation Act, the Estate Administration Act, and the Probate Recognition Act. To see what elements of the Act have been taken from the previous legislation, visit the official website of the Government of British Columbia.
While these were commonly used in the law, they didn’t reflect modern times and also received an overhaul to match the current family systems.
However, wills created prior to 2014 are not defunct, but it does impact them. For example, prior to WESA, if a second marriage took place, the new marriage would revoke the will (ie. the first spouse would no longer be provided for). But under WESA, there will have to be estate litigation to contest the contents of the wills if the marriage took place on or after March 31, 2014.
In addition, there are some elements of the new act that must be accounted for in both the estate planning* and estate litigation process.
- Test for proving undue influence: When contesting a will, the challenger must prove both the potential for domination by a party holding control over the testator and the opportunity for use of that position to unduly influence the testator to make a will or any provision in it. Under WESA, the party accused of undue influence must defend the gifts or benefits within the will.
- Courts can amend formal defects in a will to validate them: In some cases, a technical error may invalidate a will, even if the intentions of the will are valid and plausible. Under the WESA, the courts can rectify an error to validate a will so long as the intentions of the will are clear.
- Invalid wills may also be rectified in some cases: In cases of a clerical error, misunderstanding between testator and lawyer, etc., the courts may have the grounds to rectify an otherwise invalid will.
*The WESA also made changes to estate planning and succession laws.
While today we may see the terms Wills Variation Act and WESA used interchangeably, it’s important to know the difference between the laws and why a law overhaul occurred.
Contact Our Wills Variation Lawyers Today: WESA Lawyers
As a private citizen trying to amend the errors of your loved one’s will, no one can expect you to navigate all of the legal jargon that comes with these issues. However, having a team on your side who will provide you with the comfort and success your claim needs, and your family rightfully deserves.
Contact Klein Lawyers at (604) 874-7171 today for a free, confidential case evaluation. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.