When a parent dies and leaves some of his or her children out of the Will, those children have the right to apply to Court for a variation to the Will. However, the final outcome is frequently difficult to predict and is highly dependent on the particular facts of each family circumstance.
On March 31, 2014, the new Wills, Estates and Succession Act (WESA) will come into force. It largely maintains the law already in place, which is intended to ensure that the will-maker provides for those dependent on him or her.
Who is Entitled to Make a Claim?
Only spouses and children are entitled to seek relief under the Act.
Spouses are both married spouses and spouses who live in a marriage-like relationship for at least two years and continue to do so at the time of death. Once married spouses have been living separate and apart for at least two years, they are not entitled to apply.
Children entitled to apply are biological and adopted children only. It is important to note that step-children and biological children who have been adopted out are not entitled to apply.
Planning Options to Address a Potential Variation Claim
There are measures a will-maker may take to mitigate the potential effect of a variation claim by a spouse or child.
A written statement of the reasons for provisions made in a will is generally considered and given due weight by the Court when reviewing a claim by a spouse or child seeking to vary the will.
So long as the expressed reasons are “valid or rational”, BC’s Court of Appeal has said they should be given effect. “Valid and rational” reasons must be based on true facts, and logically connected to the act of disinheritance. The onus is on the spouse or child making the claim to show that those reasons were false or unwarranted.
Also, there are ways to plan ahead and ensure that property passes outside of a will. In that circumstance, it cannot be subject to a variation claim.
Planning options may include beneficiary designations for investments or insurance policies, joint tenancy, and specialized trusts. Many of these planning options have tax implications, and all such planning must be carefully crafted with comprehensive legal, investment and accounting advice.
A lawyer can help you to understand the wide range of issues that arise with estate plan. If you would like advice regarding the preparation or amendment of your estate planning documents or for more information regarding such matters please contact Chahal Priddle LLP at 250-372-3233 to set up an appointment today.