How a Beneficiary Can Change the Terms of a Will
The terms of a Will or Trust can be changed, although the traditional principle that the intentions of the person making the Will, the testator, is still an important one.
As early as 1841, English courts had started to vary Wills and the Trusts created by them. Over time, a rule of law developed that if all the beneficiaries could agree and all had legal capacity, the terms of the Will or Trust could be varied or rewritten, sometimes in fundamental ways.
Later, in BC, legislation was passed which set down the principles and procedures which permit a court to vary or even revoke the provisions of a Will or Trust.
Challenges to the terms of a Will may be made following the Wills Variation Act. Challenges to the operation of Trusts, which may be established by a Will, follow the rules and procedures established by the Trust Settlement and Variation Act.
This article will provide information about the Trust Settlement and Variation Act. For information about the Wills Variation Act see the article, Wills Variation Actions.
The courts generally will not interfere with modifications or variations of Trusts where there is an agreement freely entered into by all the beneficiaries and all the beneficiaries have legal capacity. This is the principle that people are free to make their own bargains.
However, Trusts are often established which are intended to benefit infants or elderly persons who may lack legal capacity. Legally, they can’t give their consent, even if the changes proposed might benefit them. Trusts are also often created in which potential beneficiaries have not yet been born. The Trust Settlement and Variation Act sets forth procedures for dealing with these situations.
Under the Act, an application may be brought for court approval of the proposed changes. The applicant shows the judge that all beneficiaries who have capacity approve and then convince the judge the variation will “benefit” the beneficiaries unable to give their consent. Benefits may include financial and non-financial benefits. Non-financial benefits are a broad and open category. They have been found where the changes will provide relief from emotional strain, family conflicts, and educational or social benefits.
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