Wills Variation Actions

The Wills Variation Act provides the authority to a court to vary a will where the will has not made adequate provision for the deceased’s spouse or children. The Act applies to wills, and if there is no will, the law governing the division of estates without a will applies, which has no comparable variation provisions.

The Act defines “spouse” to include common law spouses and separated but still married spouses. Divorced “spouses” are not included.

An action must be started within 6 months from the date of issue of the probate, or it is barred.

In considering a will variation action, the court will first look at the will to determine if there has been adequate, just and equitable provision for the spouse or children. The standard of what is adequate, just and equitable is to be looked at in light of “current societal norms.”

Next the court will consider if there are legal obligations that have not been fulfilled. Finally, the court will consider whether there are “moral obligations”.

To measure obligations owed to a spouse, the court has compared the will’s provisions with what property the spouse would receive in a divorce action. The rationale being in both situations, the marriage has come to an end.

Moral claims made by independent adult children are more difficult to pursue and assess. Where the size of estate means that there will be enough to adequately provide for those named in the will, moral claims have been recognized where the child had an assured expectation of inheriting, or where the present or future financial circumstances of child are, or will be, difficult.

The court’s approach is to vary the will, and not rewrite it. If there are “valid and rational” reasons for not making provision, the will will not be varied. A valid reason is one which based on true facts; a rational reason is one logically connected to the act of disinheritance.

Usually, wills variation disputes arise between independent adult children in the situation where one of the children are estranged form a parent. Estrangement may be, or may not be, a valid and rational reason for disinheritance. Regardless of the reasons for the estrangement, if the child can show a strong financial need, a variation action may succeed.

This article is for general information only, and should not be relied on as legal advice in any particular case. Consult a lawyer for advice on your case.

By Patrick McMurchy