History of Wills Variation in British Columbia

The history of wills variation in British Columbia is somewhat complicated. However, understanding the history of wills variation is critical to understanding where current law stands.

During the 1700s through the 1900s, many families in British Columbia didn’t have property that was theirs alone since most property was considered “family property.” However, courts began to realize it should not be up to marriage settlements to determine how and if property should be passed on. This is where English Common Law took effect.

English Common Law establishes that when a person dies, that individual can leave his or her property to whomever they wish. This gives the person the ability to dispose of their own estate, giving the families testamentary autonomy or testamentary freedom. 

In times following, those who followed common law had no legal duty to leave anything to their spouse or their children–but laws have since evolved.

History of Wills Variation Laws in British Columbia | Klein Lawyers

British Columbia Wills Variation Act

In the 1990s and 2000s, British Columbians were subject to the Wills Variation Act, RSBC 1996, c. 490. This prior legislation permitted the spouse or children to make a claim against the estate in appropriate circumstances while still allowing testamentary freedom to prevail if appropriate. 

What Was Subject to the British Columbia Wills Variation Act?

The basic terms of the British Columbia Wills Variation Act were as follows:

  • Even if the deceased did not live in British Columbia at the time of death, if they left behind property in British Columbia, it was subject to the Wills Variation Act.
  • Assets held in joint tenancy would depend on the individual circumstance such as if a home was owned jointly with the spouse, then the surviving spouse would receive the house by right of survivorship.

Who Was Able to Bring About a Claim Under the British Columbia Wills Variation Act?

Under the Wills Variation Act, a claim against the estate could only be brought by a spouse or child of the deceased. This included:

  • Spouses, including same-sex or common-law spouses so long as the couple had been cohabiting in a marriage-like relationship for at least 2 years prior to the deceased’s death; and
  • Children include adopted children but not stepchildren.

Importance of Section 2 of the British Columbia Wills Variation Act

Section 2 of the Wills Variation Act determined if a will did not make adequate provision for the proper maintenance and support of the deceased’s spouse or children. These provisions were determined by McBride v. Voth 2010 BCSC 443 which formed the strength of the testator’s moral duty to his or her adult independent children:

  1. Contribution and Expectation: If children made contributions to the estate or cared for the deceased, there may be bona fide expectation that children will receive benefits
  2. Misconduct and Poor Character: The person’s conduct or character disentitled them
  3. Estrangement Neglect: If estrangement is at the fault of the testator, there is a moral duty to provide to the dependents 
  4. Gifts And Benefits Made By The Testator Outside Of The Will: If the deceased left things outside the will that may fulfill the moral duty component
  5. Unequal Treatment of Children: If there is no relevant reason for unequal distribution exists, children should inherit equally
  6. Testators Reasons for Disinheritance/Subordinate Benefit: If inaccurate reasons for disinheritance are provided within the will, they may be able to justify the use of the Act.

Replacement of the Wills Variation Act with The Wills, Estate, and Succession Act

The Wills Variation Act was repealed in March 2014 and replaced by the Wills, Estates and Succession Act, S.B.C. 2009 (WESA).

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.”

WESA recognizes the moral obligation of a testator to provide for the maintenance and support of a spouse and children. In light of this obligation, the courts in British Columbia have broad discretion in varying a will to provide for the spouse and children.

How Is The Estate Distributed Under WESA and No Will?

If there is no will, the WESA makes the following provisions of estate distribution:

  1. If there is a spouse but no children, the estate goes to the spouse.
  2. If there is a spouse and children, the estate will be distributed to the spouse to a percentage and then the remainder will be distributed to the children.
  3. If there are two or more spouses, the court will determine the share if no agreement can be reached.
  4. If there is not a spouse but are children or other relatives, it goes to the children first, then to the deceased’s parents, then grandparents, etc. 

Variation of Wills Under WESA

Despite any law, if a will-maker dies leaving a will that does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may 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 courts will also evaluate whether or not there was evidence of unjust enrichment, undue influence, issues of testamentary capacity, and partition of property when undergoing wills variation

Contact Our Wills Variation Lawyers Today

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.