Partition of Property in Wills Variation

You may think that the terms of a will are adequate enough to describe how property will be distributed to beneficiaries. However, that is often not the case. A common battle in wills variation cases is that of the partition of property; especially when it comes to a living spouse and children. Klein Lawyers explains how you can work through your partition of property claims in an estate litigation case.

What Is Partition of Property?

In British Columbia, a partition act may arise when the beneficiaries of an estate are unable to agree on how to disperse property, such as a shared home. When there are concerns on how the property should be distributed, courts often look to the adequate, just, and equitable provision of the Wills, Estates and Succession Act.

Such was the cause in the leading wills variation case in British Columbia history, Tataryn v. Tataryn Estate, relying on the former Wills Variation Act.

Partition of Property in Wills Variation Claims | Klein Lawyers

Tataryn v. Tataryn Estate

In the 1994 case Tataryn v. Tataryn Estate, the testator (Mr. Tataryn) and his wife had been married for 43 and had, through joint efforts, amassed a home (which was under Mr. Tataryn’s name), a rental property, and bank funds.

In addition to the husband and wife, there were two adult sons. Because of a dislike between the father and one son, the testator decided to not leave the entirety of the estate to his wife, for fear she would pass it on to the son.

In doing so, he gave the son he was fond of full title to the rental property and created a discretionary trust to handle the remainder of the estate, including the family home. The trust the wife was the beneficiary of had a life interest in the home while the favoured son was the trustee and residuary beneficiary, taking full title to the home upon the wife’s death. The other son received nothing.

The wife then appealed to the Supreme Court of Canada. The estate was divided as follows:

  1. Revoked the bequest of the rental property to one son and granted the wife a life interest in that property;
  2. The wife was granted the title to the family home;
  3. Each son was given an immediate gift of $10,000 out of the residue of the estate; and
  4. Upon the wife’s death, the remainder of the estate – including the home and rental property – would be divided 1/3 to the son the testator did not like and ⅔ to the favoured son. 

It was concluded that the testator’s only legal obligation was to his wife and that the wife had the higher moral claim to the testator. Because there was no evidence that either son contributed to the estate, their claims were not strong.

The Tataryn v. Tataryn Estate case has created the groundwork for the partition of property and adequate, just, and equitable provision of the Wills, Estates and Succession Act–however, these cases are still complex and often laden with emotions. That’s why you need an estate litigation lawyer to guide you through the process.

Partition of Property Act

In addition to the WESA, the Partition of Property Act, R.S.B.C. 1996, c. 347 makes the following provisions:

“Parties may be compelled to partition or sell land

  1.  All joint tenants, tenants in common, coparceners, mortgagees or other creditors who have liens on, and all parties interested in any land may be compelled to partition or sell the land, or a part of it as provided in this Act.
  1. Subsection (1) applies whether the estate is legal or equitable or equitable only.
  1. In order to achieve partition, special timber licences may be assigned to any of the interested parties.”

The act further delineates who must be notified of the partition of property as well as how the court may intervene if such a trust or legal documentation does not abide by the laws of British Columbia.

Partition of Property in Wills Variation: Klein Lawyers

As the spouse or child of the testator, you have a right to proper maintenance. But, if the will does not make adequate provisions for a spouse and/or children as it applies to the division of property, our lawyers can argue for variation of the will to provide maintenance and support.

For your partition of property needs, 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.