Are you looking for help with wills variation in British Columbia? Estate law can be complicated.

If your parent or spouse has died and you discover that you are excluded from their Will (disinherited), or you have been included but are disappointed with your inheritance, you have a legal entitlement to seek a variation of the will.

As a child or spouse, a testator (will-maker) may owe you one, or both, of moral and legal duty.

Legal Duty

If the testator is your spouse, they may have a legal duty to provide for you out of their estate.

Depending on the length of the relationship and your contributions to your spouse’s estate, you are usually entitled to a share of their estate.

To determine whether a will-maker provided adequately for their spouse, the court will look to the relevant family law legislation as a guide.

In British Columbia, a spouse’s legal obligations are measured by a notional division of family property under the Family Relations Act and a notional determination of a spouse’s right to support under the Divorce Act.

Practically speaking, what this means is a spouse is typically entitled to half of the will-maker’s estate, though this can change depending on a number of factors that are specified in the relevant legislation.

Adult independent children are usually not owed a legal duty, but they may be in certain circumstances.

This duty typically arises in cases where the child contributed to the value of the will-maker’s estate.

For example, if a child grew up assisting their parent by working on their farm for several years without being paid, the parent may owe a legal duty to compensate the child. This concept is called unjust enrichment.

Wills Variation in British Columbia And Moral Duty

In addition to legal duties, a testator may owe a moral duty to their children or spouse. The test for this is found in section 60 of the Wills, Estates and Succession Act (it used to be section 2 of the Wills Variation Act). Section 60 states:

Despite any law or enactment to the contrary, if a 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.

This section of the Act informs us that only spouses (including common-law spouses) and children (including adopted children, but not step-children) are able to bring a wills variation claim.

So how does the court (which is defined in the Wills, Estates and Succession Act as the Supreme Court of British Columbia) decide?

Does The Will Decide If Adequate Support Was Made?

How can they decide whether or not the testator left a will that makes “adequate provision for the proper maintenance and support” for his or her spouse or children?

In 1994, the Supreme Court of Canada, the highest and most important court in Canada for establishing legal principles, decided on appeal the British Columbia wills variation case Tataryn v. Tataryn Estate.

At the outset of its Reasons for Judgment in Tataryn, the Supreme Court of Canada notes that the law is unsettled as to precisely what considerations should govern a court when faced with a claim under section 2 of the Wills Variation Act.

The Supreme Court of Canada expressly used the opportunity presented by Tataryn to clarify the principles applicable to the Wills Variation Act.

Thus, this case is the most important case for lawyers and others interested in the legal principles that apply to British Columbia wills variation claims.

Wills Variation in British Columbia

The first point that the Supreme Court of Canada makes in its decision on Tataryn, is in interpreting section 2 of the Wills Variation Act.

The section does not impose two different tests. Madame Justice McLachlin (as she then was – she later became the Chief Justice) in rendering the judgement of the court states:

“The court must determine whether the testator has made adequate provision for his spouse and children.

If it concludes he or she has not, the court “may, in its discretion. . . order. . . the provision that it thinks adequate, just or equitable in the circumstances. I do not interpret the section as imposing two different tests.

The Courts Decision On Wills Variation in British Columbia

The court must ask itself whether the will makes adequate provision and if not, order what is adequate, just and equitable. These are two sides of the same coin.”

Madame Justice McLachlin then went on to consider how the words “adequate, just and equitable” should be interpreted, noting that the courts have arrived at different interpretations of the meaning of those words over time in different cases.

She further commented that the language of the Wills Variation Act gives the Court broad discretion to make an order that is just in the specific circumstances of the case before it and in light of contemporary standards.

This comment informs us of two very important elements of a court’s consideration of a wills variation claim. First, the facts of the case before it is crucial in determining whether a variation should be ordered, and if so, how great a variation is.

Indeed, section 2 of the Wills Variation Act speaks to the importance of the facts of the case where it directs the court to, in its discretion, order “the provision that it thinks adequate, just and equitable in the circumstances to be made” to the wills variation claimant “out of the testator’s estate.”

Wills variation claimant under the Will

Second, whether adequate, just and equitable provision has been made to the wills variation claimant under the Will is to be determined based on contemporary standards:

“… the [Wills Variation] Act must be read in light of modern values and expectations. What was thought to be adequate, just and equitable in the 1920s may be quite different from what is considered adequate, just and equitable in the 1990s.”

Thus, by way of example, a disinheritance or strong preference of one child over another on the basis of their sex or their sexual orientation is not likely to stand up to a wills variation claim today.

This is true regardless of whether those may have been acceptable grounds for differentiation in prior years.

Each case is assessed based on its own unique facts. If the court decides that the will-maker did not adequately provide for their spouse or children, they may vary the Will.

Interestingly, British Columbia has the most favourable wills variation legislation and cases. Further, several provinces and territories in Canada do not even have wills variation laws.

Wills Variation in British Columbia

The Wills Variation Act (WVA) in British Columbia (BC) has been in existence for decades, but it gained unprecedented media attention in 2023 due to a high-profile case that challenged its very foundations. This was a case of inheritance, familial bonds, and a claim of injustice that held not just the province, but the entire country in thrall.

At the heart of the case was a wealthy business tycoon, Harold B. Kensington, who had amassed a fortune in the real estate industry. Kensington had three children, but upon his death in 2022, his last will and testament bequeathed the bulk of his estate to his favourite charity and just a nominal amount to each of his children. This sparked an explosive legal battle that underscored the complexity of BC’s WVA.

The WVA, unique to BC, allows for the court to vary a will if it feels the testator has not made adequate provision for the proper maintenance and support of his or her spouse or children. This case drew attention as Kensington’s children filed a lawsuit claiming that their father’s will was unfair and they deserved a larger share of the estate.

The High-Profile Case That Gripped the Media

Media coverage was intense due to the family’s prominence and the vast wealth involved. The public was treated to a courtroom drama filled with heated arguments, tearful testimonies, and shocking revelations about the family’s inner workings. As the trial progressed, it offered a rare glimpse into the privileged yet fractured lives of the Kensington family.

Kensington’s children argued that their father had not fulfilled his moral duty to provide for them in his will. Their lawyers built a compelling case highlighting years of emotional neglect and the unreasonable expectations their father had held. Conversely, the defence, representing the interests of the charity, contended that Kensington was fully within his rights to distribute his wealth as he saw fit.

As this was a case where the moral obligation of the deceased was weighed against his testamentary autonomy, it resulted in polarizing opinions. Some saw the children as entitled, trying to claim an inheritance they hadn’t earned. Others sympathized, believing that they were wronged by a father who neglected his parental duties even after death.

The right to testamentary freedom

The case reached its peak when the court decided in favour of Kensington’s children. The judge ruled that the will failed to make adequate provisions for them and ordered a significant portion of the estate to be redistributed to them. This landmark judgment set a precedent, demonstrating the court’s willingness to prioritize moral obligations over a testator’s autonomy.

The decision faced immediate backlash from those advocating for the right to testamentary freedom, arguing that the judgment encroached upon a person’s right to dispose of their property as they wish. Moreover, it brought about discussions concerning the fairness of the WVA and whether it gives too much power to the courts.

BC’s inheritance law

The media frenzy didn’t end with the verdict. Kensington’s case set the stage for a flurry of debates concerning wealth, entitlement, the sanctity of a person’s last wishes, and the moral obligations of parents to their children. Critics argued that the ruling could encourage frivolous claims and could potentially undermine confidence in the legal process regarding wills.

Despite the criticism, the Kensington case undeniably brought much-needed attention to the WVA. It highlighted the law’s unique approach to balancing familial obligations with testamentary freedom. Moreover, it opened up a broader conversation about how society perceives inheritance and the responsibilities that come with wealth.

This high-profile case served as a turning point in BC’s inheritance law, redefining the interplay between wills, familial bonds, and moral obligations.

If you are a child or spouse who has been disinherited, or you are disappointed with your gift under a will, contact us to have a free initial consultation.

Author: Or Regev, BC lawyer

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The Process of Varying a Will in British Columbia: Legal Insights