British Columbia Law

BC Court Confirms Right of Children and Spouses to Vary a Will

By Andrew Liggett, Sea to Sky Law, New Westminster, BC

A recent BC Appeal Court decision confirmed that children and spouses of a deceased can apply to vary the Will of the deceased after death if unhappy with the amount of their inheritance compared to other beneficiaries.

This right — sometimes called the "wills variation" right — is a distinctive and important feature of BC estate law, and it is one of the strongest reasons to ensure your Will is carefully drafted and reviewed.

The Wills Variation Right Under WESA

BC's Wills, Estates and Succession Act (WESA) — specifically Part 4, Division 6 — gives a spouse or child of the deceased the right to apply to the BC Supreme Court to vary a Will if the Will does not make adequate provision for their proper maintenance and support.

This right is broader than merely interpreting what the Will says; it is a right to ask the court to substitute its judgment for the testator's judgment about what is fair.

This is a significant right, and it is unique to BC (and a small number of other common law jurisdictions). In most other Canadian provinces, a testator has near-absolute freedom to leave their estate to whomever they choose. In BC, that freedom is qualified by the obligation to make adequate provision for spouses and children.

Who Has the Right to Vary?

The right to apply for a wills variation is limited to:

• Spouses of the deceased at the time of death — including both legally married spouses and common-law spouses (persons who lived in a marriage-like relationship with the deceased for at least two years)
• Children of the deceased — including adult children (there is no age limit), biological and adopted children

Critically, the right does not extend to:

• Stepchildren who were not legally adopted by the deceased
• Grandchildren
• Parents or siblings of the deceased
• Any other person, regardless of their relationship with the deceased or financial dependence on them

This is why legal adoption matters enormously in estate planning. A stepchild who was treated as a full family member for decades but never legally adopted has no wills variation right.

Variation vs. Interpretation: An Important Distinction

A wills variation application is fundamentally different from a court application to interpret or construe a Will.

• Interpretation: The court is asked to determine what the testator meant by the words they used — usually because the Will is ambiguous. The goal is to give effect to the testator's actual intention.
• Variation: The court is asked to substitute its own judgment for the testator's about the fairness of the bequests. The court does not need to find that the Will is ambiguous or poorly drafted — it can vary a perfectly clear and valid Will simply because the court concludes the testator did not make adequate provision for a spouse or child.

This is a remarkable power — and it is exercised by BC courts.

The Legal Test for Variation

The BC Supreme Court (and Court of Appeal) have developed a two-part test for wills variation applications:

1. Legal obligation: Did the testator have a legal obligation to support the applicant? (For example, a spouse who was financially dependent on the testator, or a minor child.)
2. Moral obligation: Did the testator have a moral obligation to provide for the applicant — based on the nature of the relationship, contributions to the family, and the applicant's circumstances?

Even where there is no strict legal obligation, a strong moral obligation can be sufficient to support a variation. BC courts have varied Wills to benefit adult children who had estranged relationships with the testator, children from a first marriage who were excluded in favour of a second spouse, and spouses who were left token bequests despite decades of contribution to the family.

What Happens When a Will Is Varied?

If the court grants a variation, it does not throw out the Will entirely — it rewrites the specific provision(s) that fail to make adequate provision. The court has broad discretion to fashion an appropriate remedy, including:

• Increasing the share of a spouse or child at the expense of other beneficiaries
• Ordering a specific asset (such as the family home) to be transferred to the applicant
• Ordering a testamentary trust to be established for the benefit of the applicant

The court exercises this discretion by balancing the testator's freedom to dispose of their estate with the countervailing obligation to provide for those who depended on them.

Planning Implications: Why This Matters for Your Will

The existence of the wills variation right has important implications for how you should draft and maintain your Will:

• If you are leaving unequal shares to children, or leaving a child (including an adult child) out of your Will entirely, you should discuss the reasons in writing with your estate lawyer — documented reasons, while not binding on the court, are relevant to the variation analysis
• If you are in a second marriage and want to benefit your children from a first marriage rather than your current spouse, you need to plan carefully with tools like a mutual Wills agreement or a trust, combined with a proper spousal support assessment
• Review your Will — what seemed fair 20 years ago may not look fair to a court today

Sea to Sky Law™ drafts Wills with the wills variation risk clearly in mind, advises estates and beneficiaries involved in variation claims, and provides practical strategies to minimisize the risk of a successful challenge to your estate plan. Contact Andrew Liggett BA JD CD to protect your legacy.

This article is general information, not legal or tax advice. Meetings are by appointment only, by phone or secure video.