In Wills & Estates

The process of altering a will after the death of the will maker is known as wills variation. This legal action allows certain family members, such as spouse or children, to challenge the distribution of the deceased’s estate if they believe they have not been adequately provided for. 

Wills variation cases can be disheartening and legally complex, requiring the expertise of a specialized lawyer, particularly a wills variation lawyer

But how do these lawyers help in tuning the court’s opinion? Today, let’s explore their duties, strategies, and the legal framework surrounding estate law.

Wills Variation Overview

The Wills Variation Act in British Columbia governs wills variation claim, allowing other family members to challenge the distribution of a will makers’ estate if they believe they have not been adequately provided for. This legal action is based on the principle that a will maker has a moral duty to make adequate provision for their spouse or children.

Which Assets Does the Wills Variation Act Apply to?

The Wills Variation Act applies only to dispositions made in a will. It doesn’t apply if the deceased didn’t have a valid will or if there’s a partial intestacy, where the Act only covers the portion dealt with in the will. The Wills Variation Act doesn’t cover assets the deceased gave away during their lifetime or those that pass outside the estate, like:

  • Certain gifts made while alive.
  • Assets put into a trust while alive.
  • Life insurance payouts and segregated funds with designated beneficiaries who survive, like surviving spouses.
  • Retirement savings and income funds with surviving beneficiaries (spouse or child) designated by the annuitant.
  • Survivors receive benefits from pension plans if designated or entitled by law.
  • Joint tenancy interests and joint bank accounts, where the survivor takes over.

 

Canada’s Wills, Estates, and Succession Act

The Wills, Estates, and Succession Act, also known as the WESA Act, sets out the criteria for determining whether adequate provision has been made for the will maker’s spouse or children. The WESA outlines who can bring a claim, the time limit for filing wills variation claims, and the factors the Supreme Court considers when making a decision.

In fact, the Supreme Court considers the following factors:

  • Financial circumstances of the parties involved
  • Any legal or moral obligations owed by the will maker
  • Will maker’s reasons for the distribution of their estate or personal property

 

What Wills Variation Claim Is Like

To give you a clear view of what wills variation is like, here are real-life case samples of surviving spouse variation claims vs the interests of children:

1. Tigchelaar v. Tigchelaar Estate Case (1995)

In this case, the will maker left his assets, mostly their share of the family home and $27,000, to their adult children from their first wife. The second wife, who owned the other half of the home, asked the court to give her these assets instead, and she succeeded.

The court decided to give the second wife a share of the will maker’s estate assets. This decision was mainly based on the Economic Unit Principle. The court considered the following:

  • The will didn’t take into account that the second wife’s pension would be less after the person’s death and that it would cost almost as much to keep her in the same home as it did to keep both of them.
  • The will also didn’t consider the possibility that the second wife might need to find more expensive housing and care later on.

2. Green v. King Estate Case (2003)

In this case, the court applied the Tataryn principles to common-law spouses. The court adjusted the will to give the common-law widow about two-thirds of the house’s share, with the option to sell or keep it, while also considering the children’s interests. The court found that the widow didn’t need these funds to support herself as she had no debts and a stable income.

In cases involving common-law relationships, legal obligations arise more from trust rights and statutory support than from property division rules. However, Green shows that common-law spouses’ rights may still be upheld to a similar extent.

 

Legal Help: How Wills Variation Lawyers Work?

A wills variation lawyer is vital in navigating the complexities of British Columbia wills variation claims. They work closely with the claimants, and their duties and responsibilities surround various aspects, including:

Understanding the situation The lawyer will carefully assess your case, gathering details about the deceased will maker and the will, your relationship with the will maker, and your financial circumstances
Evaluating the eligibility They will know if you meet the criteria to bring a wills variation claim under the relevant provincial legislation. For example, in British Columbia, BC courts can vary wills as they see fit. Even though the law was updated in March 2014, they decided not to limit this power. This means anyone involved with a will—whether you’re making it, managing it as an executor, or affected by it as a beneficiary, spouse, or child—should be prepared for the chance of a wills variation claim.
Conducting legal research The lawyer will thoroughly research relevant case law and legislation to build your case, like checking the BC Supreme Court Registry
Gathering evidence This may involve collecting documents, such as financial statements, and potentially interviewing witnesses to support your claim
Negotiating with other parties The lawyer can attempt to settle the claim through negotiation with the estate executor or other beneficiaries to avoid lengthy and expensive court proceedings
Representing you in court If negotiations fail, the lawyer will represent you, presenting your case and arguing for a fair and equitable provision
Client Counseling You can obtain legal advice from wills variation lawyers, and they’ll provide guidance and support throughout the legal process. They’ll explain your rights, options, and the potential outcomes of the estate litigation case

 

Strategic Approaches of a Wills Variation Lawyer

Wills variation lawyers employ various strategies and techniques to advocate for their clients and get their fair share of the will maker’s estate.

Evidentiary Support They gather evidence, such as financial records, witness testimony, and expert opinions, to support their client’s civil claim for adequate provision from the will maker’s estate
Legal Arguments Wills variation lawyers craft persuasive legal arguments based on the relevant legislation, case law, and the specific facts of their client’s civil claim case.
Mediation and Settlement They may recommend mediation or other forms of alternative dispute resolution to settle the matter outside of court, saving time and reducing legal costs for their clients.
Estate Litigation If necessary, lawyers are prepared to litigate the matter in court, presenting their client’s case before a judge and advocating for a favourable outcome and adequate provisions.

 

 

Know Your Rights: Hire a Wills Variation Lawyer

The role of a wills variation lawyer is multifaceted, requiring a combination of legal expertise, negotiation skills, and empathy for their client’s circumstances. Wills variation cases can be emotionally challenging, but with a skilled lawyer’s help, you can confidently navigate the legal process.

If you believe you have not been adequately provided for in a will or your deceased parent or spouse made an unequal distribution of estate assets, obtaining legal advice from a qualified wills variation lawyer who can assess your case and advocate for your rights is essential. Contact Sidhu Legal today to schedule a consultation and explore your options.

 

Frequently Asked Questions

Are handwritten wills valid in British Columbia?

In British Columbia, a will is considered legally valid only if it meets specific signing requirements. Handwritten wills are acceptable as long as they follow these guidelines. The will must be signed at the bottom and witnessed by two individuals who are not married spouses, beneficiaries, or spouses of beneficiaries.

How long do you have to contest a will in BC?

There are strict time limitations if you want to change a will. The time limit, known as the “limitation period,” depends on the type of claim you’re making. If you’re the spouse or child of the will maker and want to vary the will under the Wills, Estates, and Succession Act Section 60, you must start legal action within 180 days of the British Columbia Supreme Court issuing an estate grant of probate or administration. It’s best to contest the will before it goes into probate.

While you can still challenge a probated will, you’ll need to file a motion in BC courts to return the Certificate of Appointment of Estate Trustee. If you’re considering contesting a will in BC, you must speak with a lawyer immediately to avoid missing deadlines.

Is there any tip to successfully vary a will?

The key tips for a successful wills variation claim are straightforward. Act fast and meet legal deadlines. Be realistic about your expectations and seek advice about your case’s strengths and possible outcomes early on. Keep in touch with your lawyer regularly and be ready for the emotional difficulties that might come up. These issues often involve a close family member and can be deeply personal.

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wills and estate law