What Factors Contribute to a Successful Will Variation Claim?

While will-makers have flexibility regarding how they dispose of their assets upon death, if they fail to adequately provide for a surviving spouse or child, their will may be varied by the Court. Section 60 of the Wills, Estates and Succession Act of British Columbia authorizes a court to order compensation that it finds adequate, just, and equitable, out of the will-maker’s estate. Only spouses and children of the testator may seek a variation and must commence an action within 180 days from the Grant of Probate. Spouses include common-law partners, with whom the will-maker was in a marriage-like relationship for at least two years. Case law has excluded stepchildren not adopted by the will-maker and birth-children adopted by third parties from being proper applicants of a will variation claim.

The seminal case regarding wills variation is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 (“Tataryn”), where the Court held that a will-maker must meet both their legal and moral obligations to surviving children and spouses. The legal obligations are those which would have been imposed if property division and support were considered during the will-maker’s lifetime. Moral obligations represent society’s reasonable expectations of what should be done in the circumstances and are linked to community standards. While the Court in Clucas v. Royal Trust Corporation of Canada, 1999 CanLII 5519 (BC SC) held the will-maker’s autonomy should only be interfered with to the extent statute requires, there are some factors which often lead to variation, even in the situation of adult children who are financially independent.

The standard of living which the will-maker allowed a Plaintiff to become accustomed to will influence their level of moral obligation. In Wilson v. Lougheed, 2010 BCSC 1868, the Court considered the large size of the estate (nearly $20 million), the daughter’s current financial circumstances, and how the will-maker had historically treated her very generously when deciding to vary the will. While there is a general principle that Plaintiffs should continue to be maintained in a manner which they’ve become accustomed to, it is balanced against the estate’s ability to meet competing claims. Adult children who have financially contributed to their parents’ estates, but who are then not adequately provided for in the will are often successful under wills variations claims. This was seen in Wilcox v. Wilcox, 2000 BCCA 491, where the Court varied a mother’s will in favor of the daughter who’d made contributions to the financial purchase and running of the mother’s house. The years which the daughter had cohabitated with her mother, and the mother’s promise that the daughter would inherit the house portion of the estate also had weight in court.

The case law regarding when will-makers can limit or disinherit is ever-evolving and hinges around many factors. Will-makers’ wishes to limit inheritance may come into conflict with the moral obligations set out in Tataryn, specifically when a will-maker’s reasons might not be sufficient under community standards of what a judicious parent would have done. This was seen in Lamperstorfer v. Lamperstorfer Estate, 2018 BCSC 89, where the Court held that the will-maker’s mental health challenges and reclusiveness from society prevented him from meeting his moral obligation to his sons. Absent reasons otherwise, there’s an expectation that adult children will share equally in their parents’ estate, as seen in Laing v. Jarvis Estate, 2011 BCSC 1082. Yet reasons can be various, and the Court is hesitant to interfere with a will-maker’s wishes so long as they were made with a sound mind. In particular, Williams v. Williams Estate, 2018 BCSC 711, where a father arranged his affairs to leave all but approximately $5,000 of his estate to his favorite son, Brent, to the detriment of the other son, Ron. The will-maker had a much stronger relationship with Brent, and Brent also had dependants to support. Further, the will-maker had entirely lost contact with Ron for several years. Despite how the prevailing son Brent was financially stable before his father’s passing, and how the financial outcome was unequal, the Court refused to vary the will.