When can a Court vary a Will? – Estate Litigation


Under the British Columbia Wills and Estate Succession Act, a court has the power to vary a Will from the original intentions of the testator. In Hagan-Bourgeault v. Martens Estate (2016 BCSC 1096), a daughter applied to have her mother’s Will varied. Tataryn v Tataryn Estate, [1994] 2 SCR 807, 93 BCLR (2d) 145 (SCC) outlines the factors that a court must consider when varying a testator’s Will. Ultimately, the Court may vary the Will as long as it is ‘adequate, just and equitable’ in light of the circumstances.

The contest in Hagen-Bourgeault was over a modest estate. The residue of the estate consisted of a structured settlement from ICBC, which paid a monthly income of about $2,200.00 per month. The mother left no immediate direct provision for her daughter in her Will, and did not disclose any reason for her failure to do so. Instead, the mother left the residue of her estate to her husband. The husband’s position was that it was the deceased’s intention that he should have the discretion to make payments to the daughter based on her needs. The Will also stated that if the husband predeceased the daughter, that the “residue of the estate was to be held in trust for the plaintiff” and to be paid at predetermined later dates.

In determining the appropriate division of the estate in Hagan-Bourgeault, the Court analyzed both the financial need of the daughter, and the moral claim that she had to the funds. The Court also reviewed the position of the husband. He only had a short relationship with the deceased and he was financially independent.

The Court held that it was just and equitable to vary the mother’s Will and give the residue to the daughter.