Will variation refers to the legal process by which certain family members can challenge the distribution of an estate under a deceased person’s will if they believe the will does not provide fair or adequate support.
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Will Variations
Cunningham & Co. can assist you with assessing whether you have a valid claim, guiding you through the legal process, and protecting your rights as a spouse, child, or dependent under the law.
What is will variation?
In British Columbia, the Wills, Estates and Succession Act (WESA) allows a spouse (including a common-law spouse) or child of the deceased to apply to the court to vary the will if the estate’s distribution does not provide adequate maintenance and support. The purpose of will variation is to ensure that the deceased’s distributions align with their moral obligations. The moral obligations of the deceased refers to the ethical obligation to provide for dependents in the will which extends beyond purely legal obligations. For instance, the deceased must consider the financial and personal needs of children, even if those children are independent adults.
Will variation claims are assessed on a case-by-case basis. The court considers factors such as:
- The financial needs of the applicant
- The size and nature of the estate
- The deceased’s obligations to the applicant
- What a reasonable person in the deceased’s situation would have done
- Any other relevant circumstances
Who can apply for will variation in British Columbia?
Under BC law, the following individuals may apply to vary a will:
- A spouse or common-law spouse of the deceased
- Children of the deceased, including adult children in certain circumstances
It’s important to note that only eligible applicants under WESA can bring a claim. For example, stepchildren are not considered “children” of the deceased under WESA, but legally adopted children are.
Can will variation be avoided?
While it’s not always possible to completely prevent a will variation claim, careful estate planning can significantly reduce the risk. Some strategies include:
- Ensuring the will provides fair and adequate distributions to dependents
- Clearly explaining in writing any reasons for unequal distributions, demonstrating that the decision was valid and rational
- Considering trusts, lifetime gifts, or other estate planning tools to meet the needs of family members before death
Proper estate planning can reduce disputes, protect your intentions, and give beneficiaries clarity about the estate’s distribution.
What are some examples of will variation claims in BC?
Will variation claims vary widely, but some common examples include a spouse left out of the will entirely or given a very small portion compared to the estate’s value or children who were financially dependent but received minimal support compared to other children.
How much time do you have to file a will variation claim?
In BC, a will variation claim must generally be filed within 180 days of the grant of probate or administration. Limitation periods are strict, so it’s crucial to seek legal advice as soon as possible if you believe you have grounds for a claim. Once the 180-day period has expired, your claim is likely “statute-barred,” meaning the court will not hear it. Therefore, early action ensures your rights are preserved and your application is timely.
What is the will variation process like in British Columbia?
The process typically involves the following steps:
1. Assessment
A lawyer reviews your eligibility, the will, and the circumstances.
2. Filing the Claim
A lawyer file your Notice of Civil Claim with the BC Supreme Court within the limitation period.
3. Negotiation or Mediation
Many disputes are resolved outside of court to save time, cost, and stress.
4. Court Hearing
If the dispute cannot be resolved, the court considers evidence and determines whether the will should be varied.
5. Distribution Adjustment
If the court grants the claim, the estate is redistributed in a fair and reasonable manner.
Do you need a will variation lawyer in BC?
If you believe a will has unfairly excluded you or failed to provide adequate support, it’s crucial to act promptly. At Cunningham & Co., we can assess your eligibility and the strength of your claim, guide you through negotiation or mediation to avoid costly court battles, and represent you in court if litigation becomes necessary. We work to protect your rights and help achieve a fair outcome, providing clear guidance every step of the way.
Book a free consultation today to discuss your situation and understand your options.
