Varying Wills in British Columbia
Estate litigation lawyers use part of the Wills Estates and Succession Act (or WESA, formerly the Wills Variation Act) when varying wills. In British Columbia, wives, husbands and children are protected from their parents or spouses writing wills and leaving their assets in a way that offends contemporary community standards.
Section 60 of WESA (formerly Section 2 of WVA) says,
Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
Section 60 of WESA balances two important principles:
- Rights Before Death: Before death, a person has the right to do whatever he/she wants with his/her principal residence, summer home and investments by disposition or gift. Before death, a testator in his/her will has the right to leave his/her assets to whomever he/she pleases, a right called testamentary autonomy. Sometimes, this includes deliberately disinheriting a spouse and/or children.
- Rights After Death: After death, a spouse and children have the right to challenge testamentary autonomy under section 60 of “WESA” if the will does not make adequate provision for his/her/their proper maintenance and support. The spouse can be common law or married; the children can be biological or adopted, but the act limits absolute testamentary autonomy.
A spouse or child has 180 days from the date of probate to challenge the will (which is also known as varying wills), a deadline that is strongly enforced.
If you or someone you know has been disinherited and would like information about varying their parent or spouse’s will, be sure to contact us at 604-264-5550 or [email protected] for a free claim evaluation.