What is a ‘Wills Variation Claim’?
Note: This article does not contain legal advice about wills variation claims. If you would like advice on your specific situation, please contact Spraggs Law.
Q: What is a will?
Michael Liu (ML): A will is a legal document that allows a person to direct how his or her assets are to be distributed and used upon his or her passing. For a will to be valid, it must comply with certain legal requirements both in terms of the document itself, the capacity of the will maker, and circumstances under which the will was made.
The concept of a will can be traced back to ancient Greece and Rome. In our common law system, property rights are fundamental. In fact, most common law principles focused issues relating to property.
Estate law deals mostly with property rights. Indeed, ‘testamentary freedom’ — the right to dispose of your property as you see fit through, typically through a will — could be considered to be your final exercise of this right.
Q: Why do I need a will?
(ML) There are many reasons for getting a will. One common reason is to have peace of mind. Life is full of perils and people, regardless of the stage of life they are at, want to make sure their loved ones are taken care of. Obviously, how one perceives as taking care of their loved ones is subjective and these preferences and attitudes can be reflected in the will.
For example, it may not be wise to give a large sum of cash to a minor without supervision or you may wish to grant someone to live in your property for the duration of his or her lifetime without that person gaining outright ownership rights to the property.
Absent a will, your assets will be distributed based on rigid statutory rules that may not reflect your wishes.
Another common reason is to maximize the estate. People work hard to accumulate wealth and proper estate planning, including a will, can help minimize tax and other cost consequences.
Q: What are your rights and remedies in case a will appears to be unfair?
(ML) There are many possibilities, but the two main tools are challenging the validity of the will and seeking a variation of the will.
Q: What is a ‘Wills Variation Claim’?
(ML) A wills variation claim is a recognition in British Columbia law of the need to balance testamentary freedom — where a property owner has the right to dispose of property as they see fit — and certain moral obligations and expectations toward one’s spouse and children.
As such, the Province enacted legislation that gives a statutory right of under the Wills, Estates and Succession Act to seek an court order to vary the terms of an otherwise valid will because the original terms of the will do not adequately provide for the claimant.
Q: Who can ask for a variation? Is there a time limit?
(ML) The spouse and children of the will maker can initiate a claim. It’s important to note because the increasing prevalence of family law issues such as separation, common-law relationships, adoptions and blended families, the definition of “spouse” and “children” might not always be straightforward (we’ll address this topic in a separate blog post).
Importantly, the variation claim must be commenced within 180 days of the grant of probate. Other limitation periods or deadlines may apply.
Need help with an estate law issue? Contact the team at Spraggs Law
Do you need help with a will variation? Spraggs Law can help. Give us a call at 604 359 1627 for a free consultation to discuss how we can offer personalized assistance based on your circumstances.