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What Can Be Done When A Will is Unfair

    A death in the family, whether sudden or ‘expected,’ is often emotionally overwhelming and stressful. Times such as this can be fraught with tension between family members – especially if it is discovered that the deceased (the ‘testator’ in legal language) has a left a Will that excludes some rightful heirs or it unfairly apportions the asset (the ‘estate’ in legal terminology) bequests.

    Under BC’s Wills, Estates and Succession Act (WESA), the testator has a moral and legal obligation when drafting their Will to fairly provide adequate support for their surviving spouse and children. WESA defines ‘spouse’ as a person who is married to the deceased, or who has lived with the deceased (including a person of the same gender), in a marriage-like relationship, for at least two years prior to the date of death.

    When a spouse or child of the deceased has been left out of a Will (example: the testator leaves the bulk of the estate to one sibling and does not provide anything to another sibling), or feels that there has been an unequal disbursement of the estate (example: the children of the deceased by a first spouse receive the majority of the estate and the current, decades-long life-partner receives a significantly smaller amount), they can apply to the Court to have the terms of the Will ‘varied’ (meaning ‘changed’) to reflect what the Court deems to be a more fair and equitable settlement. This is called ‘applying for variance’ (in non-legal language ‘contesting the Will’) and is where an estate litigation lawyer can help.

    In determining whether to vary the terms of a Will, the Court may consider such things as:

    • The value and types of assets that make up the estate
    • The nature of the relationship between the applicant and the testator (for instance were they close? loving? at odds? estranged?)
    • Whether the testator gave significant gifts (such as money or property) to the applicant or the other heirs during their life
    • Did the applicant provide care for testator
    • What, if any, promises were made to the applicant about what they would inherit 
    • The financial needs and living standard of the applicant
    • Was the testator unduly influenced by another person or persons
    • Did the testator have sufficient mental capacity to make the Will

    Applying to have the terms of a Will varied can exacerbate long-simmering family tensions – especially if other family members do not agree with the applicant’s position and/or they stand to lose materially through a more equitable disbursement.

    Contesting a Will has become more common as the value of real estate in Metro Vancouver has escalated and the value of estates has increased accordingly. This results in the cost/benefit ratio of applying for a variance becoming more attractive as the value of the estate rises.

    Our legal team is here to help you get your fair share – whether through negotiating with the other heirs or, going to Court to apply for a variance. As your partners in this process, our commitment is to make it as manageable, and stress-free as possible.

    At Clark Woods LLP we believe in equal access to justice – making a variance application does not have to be expensive as we handle many such cases on contingency. Contingency means that there are no up-front costs on your part. We negotiate with you to take a percentage of the settlement and only get paid if we win the case for you.

    Check the blog next month when we will de-mystify what happens when someone dies and does not leave a Will.