It is a common principle of law that when a person creates a will, they are able to choose what happens to their property when they die. However, in British Columbia, they have created a Wills Variation Act which allows for a spouse or child of the deceased to petition the court for the deceased’s will to be equitable and just. If they do not believe the will was left fairly, they can ask the court to create a fair variation of the will. If the lawsuit is successful, the will is not considered invalid but it would be changed.
When a parent dies and they create their will, sometimes one or more of their children may be treated less favorably than their other children in the will. There could be a good reason for differential treatment. One child could have been treated more favorably with gifts by the deceased while they were alive and therefore, will receive less in the will. The child also may have been estranged from the deceased, not by the parent’s choice. While there are valid reasons for some children to be treated better in a will than others, sometimes it is found that the deceased did not make equitable and just provisions for one of their children and their reasoning was not viewed as acceptable by the court. The only children that are able to apply to vary the will are the deceased’s biological or legally adopted children. It does not matter if the children are adults or minors or if they were dependents of their parents at the time of death.
An example of a reason that the court would not find favorable would be if a parent did not treat them fairly in a will based on their gender, sexual orientation, or age. Another example of unfair treatment would be if children from one marriage were treated better in the will than children from another marriage. While these are only two examples, there are many circumstances that the court could order a variation of a will and it depends on each unique case. The court will take into consideration any reasoning left as to why the will was created in this uneven manner.
In addition to a parent not leaving his estate appropriately and equally to their children, the court could also decide that a spouse was not properly provided for by the will of their deceased spouse. A spouse is defined as someone who is married to the deceased or is a common-law spouse. This includes same-sex couples.The court has many factors to consider when deciding if a spouse was adequately provided for in the will. Some of these factors include the length of their marriage, the division of their assets, and any gifts outside of the estate.
In order to apply to vary the will, the children or spouse must do so within six months from the will is enacted. The court will consider many factors when deciding if they will grant a variation of the will. The court will consider legal and moral obligations. They will also consider the standard of living of the deceased’s family, how the deceased was care for by their spouse and children, the intentions of the deceased, and the health of the family. If you have any more questions in regards to drafting a will, contact an experienced wills attorney O’Fallon MO turns to for help.
Thank you to the Legacy Law Center for providing their expertise and insight on wills.