At Klein Lawyers, we understand that few events are more tragic than the loss of a loved one. Ideally, your relative leaves a will that adequately provides for you in the event of their passing. Unfortunately, whether due to issues such as undue influence, questions of capacity, and unjust enrichment, spouses and children are sometimes forced to fight to have their needs met.
This legal process is known as wills variation. In British Columbia, only spouses and children can apply to vary a will.
Klein Lawyers can help you dispute your loved one’s will if it does not make adequate provision for you. Please call (604) 874-7171 today for a free case evaluation. Our estate litigation lawyers serve clients in Vancouver, Surrey, Abbottsford, Langley, Burnaby, Coquitlam, and other areas of British Columbia.
What Are My Rights in a Wills Variation Case?
According to section 60 of British Columbia’s Wills, Estates and Succession Act:
“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 Wills, Estates and Succession Act (“WESA”) recognizes the moral obligation of a testator (the person making the will) to provide for the maintenance and support of a spouse (includes same-sex marriage and “marriage-like” relationships lasting 2 years or more) and children (natural or adopted; stepchildren are excluded). In light of this obligation, the courts in British Columbia have broad discretion in varying a will to provide for the spouse and children.
Klein Lawyers can assist in a wills variation dispute where the deceased resided in British Columbia prior to death and had assets in British Columbia.
What Should I Do If I Dispute the Will?
Wills variation claims are subject to very strict deadlines. Once probate is granted, you only have 180 days (approximately six months) to take legal action. The executor of the estate (the individual specified by the will or appointed by the court to perform administrative duties in connection with the estate) must be served an initial pleading (effectively a notice of your intent to sue) no later than 30 days after the 180-day period above expires.
Estate dispute litigation is a complex area of law. It is in your interest to contact a wills variation lawyer for assistance with your claim.
Our lawyers will ask for the following when you consult with us on your case:
- A copy of the will, if there is one
- Details regarding probate, including the date of grant of probate
- Details of the estate assets and the disputed sums
- Details of other possible beneficiaries
Based on the information you provide, our team will determine your options for arguing that the will should be varied.
How Can a Will Be Challenged?
There are a variety of circumstances in which the provisions of a will may be disputed by a surviving spouse or the surviving children, specifically in circumstances where the will fails to provide for the proper maintenance and support of the disputing party, or where the gift left to the spouse or children is not adequate, just, or equitable.
In addition, estate dispute litigation may include various other legal arguments to help support the spouse or child’s claim, including the following:
One or more parties may exert an undue influence on the testator by applying pressure or coercion. When the testator is subjected to undue influence, family members may be taken aback at the distribution of assets and property or the exclusion of dependents.
The elderly and infirm are particularly vulnerable to undue influence in the drafting of a will. Our lawyers will investigate both your loved one’s capacity and the relationship with other beneficiaries to determine if undue influence was a factor.
In estate law, “capacity” refers to the ability of a testator to make a will that is legally valid. Capacity may be at issue if it can be proved that your loved one was suffering from dementia, senility, or a mental disease or defect that affected his or her decision making and judgment at the time the will was made.
Testamentary capacity may be called into question alongside allegations of undue influence, or be related solely to the competence of your loved one.
Similar to undue influence, unjust enrichment occurs when a party manipulates a testator into naming them a beneficiary of the will at the expense of the interests of the testator and his or her legitimate beneficiaries. The enrichment may be found “unjust” if beneficiaries recognized by law (such as a spouse or children) are deprived of assets and property to which they have a legitimate claim.
Partition of Property
Partition actions may arise when the beneficiaries of an estate are unable to agree on how to dispose of property such as a shared home. If the will does not make adequate provision for a spouse or children as it applies to the division of property, our lawyers can argue for variation of the will to provide maintenance and support.
Questions concerning partition of property were central to the leading wills variation case in British Columbia history. In Tataryn v. Tataryn Estate, a wife contested the terms of her late husband’s will that bequeathed ownership of the matrimonial home and a rental property owned by the married couple to one of their sons. Citing the “adequate, just and equitable” requirement in the Wills, Estates and Succession Act, the Supreme Court of Canada found that Mrs. Tataryn was entitled to ownership of the matrimonial home and a life interest in the rental property.
What Can I Recover in a Wills Variation Case?
In a successful wills variation claim, the court may vary the will to provide for the spouse and/or children. Our lawyers may also be able to negotiate a variance of the distribution of assets in your favour.
The value of the variance will depend on the nature of the relationship and the nature and value of the assets (liquid, property, etc.). Factors a court may consider when deciding whether to vary a will include:
- The value and nature of the estate’s assets
- The financial circumstances of the spouse or child challenging the will
- The financial circumstances of the other beneficiaries
- The character and conduct of the spouse or child towards the deceased
- Whether the spouse or child was dependent financially on the deceased and to what extent
- Evidence of the will-maker’s reasons for not fairly providing for their spouse or child
Ultimately, a successful outcome in a wills variation case will depend on the specific circumstances of the spouse or children of the testator, as well as what constitutes “adequate, just and equitable” provision.
Contact Our Wills Variation Lawyers Today
Challenging a loved one’s will is an emotional process. These cases often involve questions of disinheritance and other sensitive matters that can make the loss of a family member even harder to bear. In addition, you have very little time to dispute the will.
With all of these factors in mind, it is important to work with an experienced lawyer who is committed to winning the maintenance and support you deserve.
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.