In British Columbia, the Wills, Estates and Succession Act (“WESA”) governs the variation of wills. Section 60 permits a will-maker’s spouse or child to apply to the court for an order to vary to the will if they feel that the will does not sufficiently provide for them. In the face of such an application, the court may order that a particular provision of the will be altered in a way that is “adequate, just and equitable in the circumstances.”
Who Is Considered a Spouse under WESA?
Whether or not an individual is considered a spouse will depend on the status of the individual’s relationship with the will-maker at the time of the will-maker’s death.
An individual is considered a spouse for the purposes of varying a will if:
1. They were married to the will-maker, or;
2. They lived with the will-maker in a marriage-like relationship for at least two years.
If an individual ceased being the will-makers spouse while the will-maker was still alive, that individual is no longer considered a “spouse” and will not be qualified to vary the will. An individual has ceased being the will-makers spouse if:
1. in the case of marriage, an event occurred that triggered an interest in family property under the Family Law Act (this includes separation); or,
2. in the case of marriage-like relationships, if either the will-maker, the individual seeking to vary the will, or both, ended the relationship.
An individual may still be considered a spouse if they were trying to reconcile with the will-maker at the time of the will-makers death and certain conditions have been met.
Who Is Considered a Child?
The other type of individual who can apply to vary a will is the will-maker’s child. While WESA does not provide a definition for “child,” case law has determined that the following individuals are not considered a child for the purposes of varying a will:
1. a step-child who has not been adopted by the will-maker;
2. a child to whom the will-maker acted as a parental figure, but who was not adopted by the will-maker; and,
3. a biological child of the will-maker who has been adopted by another person.
If you require assistance with a wills variation, call Natasha Roth at Bradbury Sippel Law Corporation.
Natasha Roth is an experienced litigator on Vancouver Island. Located in Nanaimo, British Columbia, Natasha has an interest in estate litigation including wills variation claims. Natasha has appeared before the Supreme Court and Provincial Court of British Columbia.
Natasha Roth can be contacted by phone at 1-250-824-2560 or via email at natasha@bradburysippel.com.