Wills Variation in BC: Challenging a Will Under Section 60 of the WESA
Introduction
Imagine discovering you've been disinherited after your mother’s passing. In British Columbia, however, the law allows for challenges to a will. Under Section 60 of the Wills, Estates and Succession Act (WESA), if a will does not provide "adequate, just and equitable" support for a spouse or child, it can be varied by a judge.
This article outlines the will variation process, qualification criteria, deadlines, and key BC cases that have influenced this aspect of law.
What Section 60 of WESA Says
The statutory wording of Section 60 is brief but powerful:
“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 court can modify wills through a variation claim, but only under specific circumstances and for certain individuals.
Who Can Bring a Claim?
Those claiming to have been provided with anything other than an ‘Adequate, Just and Equitable’ distribution of the estate are limited by Section 60 to two categories:
Spouses, including legally married and common-law partners who lived in a marriage-like relationship for at least two years, and
Children, either biological or legally adopted.
As a result, individuals such as step-children who have not been adopted, along with siblings, parents, and friends, are unable to benefit from the provisions of Section 60 of the WESA.
One of the most critical aspects of a wills variation claim is the timeline. Section 61 of WESA states that a claim must be filed:
Within 180 days of the date probate is granted (not the date of death), and
The executor must be served within 30 days after that deadline.
This six-month window is strict. Missing it usually ends your chance to apply if you’ve failed to file an extension in time, no matter how strong your claim may be.
The Legal Test: What Counts as “Adequate, Just and Equitable”?
A fair distribution of an estate should take into account both legal and moral obligations, as well as the wishes of the willmaker. The goal is to achieve what is considered “adequate, just, and equitable.”
The leading authority on this matter is the Supreme Court of Canada case Tataryn v Tataryn Estate, [1994] 2 SCR 807.
Here, the Court outlined a two-part test:
Legal obligations: What did the will-maker owe by statute or contract? This includes obligations like spousal support under family law or court-ordered maintenance.
Moral obligations: What would a “judicious person” consider fair based on contemporary social values?
This establishes that while legal obligations are paramount, the court may take moral responsibilities into account when adjusting gift distributions based on what a judicious person would do in line with contemporary societal standards.
Balancing Cultural Heritage and Legal Frameworks
A will that adheres to traditional inheritance principles but fails to address contemporary notions of fairness may be modified through a will's variation claim under Section 60 of the Wills, Estates and Succession Act (WESA).
An illustrative case is Grewal v. Litt, 2019 BCSC 1154. In this instance, the will-makers allocated $150,000 to each of their four daughters, while the remaining $9 million estate was distributed among their two sons.
The daughters challenged the wills under Section 60 of WESA, arguing that the distribution reflected cultural bias favouring the sons. The court determined that cultural traditions could not justify markedly unequal treatment of children and thus modified the wills to ensure a more equitable division of the estate.
Additionally, one of the sons claimed unjust enrichment, asserting that his work on the family farm without proper compensation entitled him to a larger share of the estate. The court dismissed this claim, concluding that his decades of rent-free use of the property constituted sufficient compensation.
Evidence the Court Will Consider
Section 62 of WESA allows the court to consider a wide range of evidence to justify the will maker's decision to make gifts or not make adequate provisions for their spouse or children, using written statements signed by the will maker.
Wealth does not automatically negate a variation; however, if the claimant is independently wealthy, the court may consider this against a variation while also factoring in the size of the estate.
If a claimant is disabled or vulnerable, that may increase the moral obligation owed. Conversely, evidence of serious misconduct against the willmaker can justify upholding a disinheritance under Section 63 of the WESA.
Strategy for Claimants
If you believe you’ve been unfairly left out of a will:
Act fast to obtain probate documents
Collect your own financial records and medical history
Retain a lawyer experienced in estate litigation (many offer contingency fees)
Document any contributions you made to the will-maker’s care, business, or household
Strong preparation and early legal advice can significantly increase your chances of success.
To reduce the risk of your will being challenged, book a consultation for estate planning.
Frequently Asked Questions
When dealing with will variation claims in British Columbia, understanding who can contest, the grounds for challenging, and the procedures involved is essential. It's also important to know the rights of spouses and children and the conditions under which a will may be deemed invalid.
Who is eligible to contest a will under the Wills, Estates and Succession Act in British Columbia?
Under British Columbia's Wills, Estates and Succession Act (WESA), spouses and children of a deceased person can contest a will. If you believe you have not been adequately provided for, you may be eligible to make a claim. This includes both biological and adopted children.
What constitutes grounds for challenging a will in British Columbia?
Grounds for challenging a will include if the deceased has not made adequate provision for the proper maintenance and support of a spouse or children. Each case is assessed individually, considering factors like needs, means, and fairness within the family dynamic.
How does one initiate a will variation claim in British Columbia?
To initiate a will variation claim in British Columbia, you must file a claim in the Supreme Court of British Columbia. Legal guidance is recommended to navigate the complexities of the process effectively. Providing detailed evidence to support your claim is crucial.
What is the statutory deadline for filing a wills variation claim in British Columbia?
The statutory deadline for filing a will variation claim in British Columbia is 180 days from the date of the grant of probate. Missing this deadline could result in losing the right to challenge the will. Timely action is vital to preserve your claim.
In what circumstances may a will be deemed invalid in British Columbia, thereby allowing for a variation claim?
A will may be deemed invalid if the will-maker lacked mental capacity, was unduly influenced, or if the will was not properly executed. Such circumstances could open the door for a will variation claim. Each claim must be evaluated based on the merits of these conditions.
What legal rights do spouses and children have when contesting a will in British Columbia?
Spouses and children in British Columbia have the legal right to apply for a variation if they believe the will does not adequately provide for their needs. Courts aim to balance testamentary autonomy with fairness and reasonable provision for dependents.
Key Takeaways
Section 60 of WESA allows spouses and children to challenge a will that fails to meet legal and moral obligations.
Claims must be filed within 180 days of probate.
Courts apply a two-part test: legal duties first, then moral fairness, which can override tradition.
Early action, solid evidence, and good legal advice are essential to success.
Need Advice?
If you believe a will treats you unfairly or want to ensure your own estate plan avoids future disputes, book a consultation with Parr Business Law. We’ll walk you through your rights and help design a plan that protects your loved ones and your legacy.
Sources:
AI Statement: OpenAI’s language tools and Grammarly were used to generate synonyms, correct grammatical issues, and adjust sentence structure, ensuring greater clarity for the reader
WESA
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01
Tataryn Case
https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1161/index.do
Grewall V Litt
