An oft talked about, but little understood, area of estate planning is ‘wills variation’. Wills variation, formerly a concept detailed in the Wills Variation Act, and now incorporated into the Wills, Estates and Succession Act (WESA), is a BC law that allows family members of the deceased to apply to Court to have the Will of the deceased ‘varied’ (ie. changed). The Court then has the power to “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.” In plain language, this means that the Court can change a deceased’s Will on terms it thinks appropriate in the circumstances.
So who can apply to vary the deceased’s Will? This is specifically set out in WESA. Namely, it is the deceased’s spouse and children. In addition to married spouses, WESA also defines a “spouse” as those who, “live in a marriage-like relationship for at least two years”. As for children, while not defined in WESA, the Courts interpreted the concept to include adopted children, but have excluded step children.
Unique to British Columbia, support for spouses and children is not just for those dependent on the deceased, such as young children or those with a disability. Adult, independent children can apply to have the Will varied. This means that children do not need to demonstrate need – simply being disinherited or being left less than one’s siblings may be enough in the eyes of the Court to allow the variation of a deceased’s Will.
If a will-maker disinherits, or simply leaves less to a certain child or spouse, the disgruntled beneficiary may sue the estate to have the Will varied. Apart from significantly delaying the distribution of the estate, there are substantial costs associated with wills variation actions, often in the form of legal fees borne by the beneficiaries. Even a substantial inheritance can be quickly dwindled away by legal fees. Further, for families and the intended beneficiaries a wills variation can tie up the administration of an estate for years, and drag them into an often bitter dispute.
Among estate practitioners, a potential wills variation action can be the proverbial Sword of Damocles hanging over a carefully laid out estate plan. For unplanned estates, it can be downright devastating. Death is, of course, an emotional time for any family; but, a wills variation action can make an emotional situation worse. Steps must be taken to consider potential wills variation claims and to ensure that the beneficiaries receive what was intended for them. Careful planning must be taken in order to preserve that legacy.