Challenging, Changing, Contesting, Disputing or Varying an Unfair Will
1. Who can apply to change an unfair will?
A married spouse, common law spouse, adopted or biological son or daughter can apply to court under Section 60 of the Wills, Estates and Succession Act (WESA) to change the will of a spouse or parent if it does not make adequate provision for his or her proper maintenance and support. If this sounds like your situation, please contact us to book an appointment.
2. What is the legal test?
Section 60 of WESA sets out the test:
Maintenance from estate
60 Despite any law or enactment to the contrary, if the 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.
3. How is the test applied?
In British Columbia, “adequate” and “adequate, just and equitable” is informed by reference to contemporary legal standards and moral standards.
For contemporary legal standards, one example for a spouse is the property division section of the Family Law Act which sets out how property is divided on a marriage or relationship breakdown. Another example is a son or daughter who worked on a parent’s properties and was not paid.
For contemporary moral standards, one example for a child is an assured and reasonable expectation of receiving an inheritance.
4. What do I need to do?
The spouse or child must start an action by filing a wills variation notice of civil claim in the Supreme Court registry. The notice of civil claim must also be served.
5. How long do I have?
The spouse or child must file the wills variation claim within 180 days after the representation grant is issued in British Columbia. The claim must be served within 30 days after the end of the 180 day period. The total length of time is 210 days from the date of the representation grant. A representation grant is defined in Section 1 of WESA and includes a general, limited or special grant of probate.
Important Wills Variation Cases
The leading case on challenging a will or contesting a will in BC remains the Supreme Court of Canada decision Tataryn v. Tataryn 1994 CanLII 51 (SCC). One of the leading BC cases on interpreting Tataryn v. Tataryn remains the 1999 decision Clucas v. Royal Trust Corporation, particularly paragraph 12 as set out below:
12. Many cases have been decided under the Wills Variation Act. The considerations governing the court’s decisions have evolved over time and there is a fairly comprehensive set of competing principles to which effect must be given. I have endeavoured to summarize these as follows:
1.The main aim of the Act is the adequate, just and equitable provision for the spouses and children of testators. (Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC),  2 S.C.R. 807.
2.The other interest protected by the Act is testamentary autonomy. In the absence of other evidence a Will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only insofar as the statute requires. (Tataryn, supra)
3.The test of what is adequate and proper maintenance and support as referred to in s. 2 of the Act is an objective test. The fact that the testator was of the view that he or she adequately and properly provided for the disinherited beneficiary is not relevant if an objective analysis indicates that the testator was not acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards. (Tataryn, supra; Walker v. McDermott, 1929 CanLII 86 (SCC),  S.C.R. 94; Price v. Lypchuk Estate 1987 CanLII 165 (BC CA), (1987), 11 B.C.LR. (2d) 371 (C.A.); Dalziel v. Bradford et al. 1985 CanLII 427 (BC SC), (1985), 62 B.C.L.R. 215 (B.C.S.C.))
4.The words adequate and proper as used in s. 2 can mean two different things depending on the size of the estate. A small gift may be adequate, but not proper if the estate is large. (Price v. Lypchuk Estate, supra)
5. Firstly, the court must consider any legal obligations of the testatrix to her spouse or children and secondly, the moral obligation to her spouse or children. (Tataryn, supra)
6.The moral claim of independent adult children is more tenuous than the moral claim of spouses or dependent adult children. But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made. (Tataryn, supra)
7.Examples of circumstances which bring forth a moral duty on the part of a testator to recognize in his Will the claims of adult children are: a disability on the part of an adult child; an assured expectation on the part of an adult child, or an implied expectation on the part of an adult child, arising from the abundance of the estate or from the adult child’s treatment during the testator’s life time; the present financial circumstances of the child; the probable future difficulties of the child; the size of the estate and other legitimate claims. (Dalziel v. Bradford, supra and Price v. Lypchuk, supra)
8.Circumstances that will negate the moral obligation of a testatrix are valid and rational reasons for disinheritance. To constitute valid and rational reasons justifying disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance. (Bell v. Roy Estate 1993 CanLII 1262 (BC CA), (1993), 75 B.C.L.R. (2d) 213 (B.C.C.A.); Comeau v. Mawer Estate,  B.C.J. 26 (B.C.S.C.); and Kelly v. Baker (1996), 15 E.T.R. (2d) 21 (B.C.C.A.))
9.Although a needs/maintenance test is no longer the sole factor governing such claims, a consideration of needs is still relevant. (Newstead v. Newstead (1996), 11 E.T.R. (2d) 236 (B.C.S.C.))
One of the more recent leading BC cases interpreting Tataryn v. Tataryn is the 2010 decision McBride v. Voth 2010 BCSC 443 (CanLII), a case in which our firm acted. Since 2010, McBride v. Voth has been referred to in other decisions 16 times including: