Adequate Provision that is Just and Equitable

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The most intriguing part of the Wills Variation Act (now the Wills, Estates and Succession Act) is that “adequate provision for the proper maintenance and support” and “adequate, just and equitable” is judged in light of contemporary community standards, legal and moral.

These legal and moral standards are different in different parts of our country, different in different parts of our province, and different among different cultural communities. They have changed over time and will continue to change. The obligations set out in section 2 (now section 60) are to be read in light of modern values and expectations, not those of 20, 30 or 40 years ago.

The courts begin by looking at legal norms which generally take priority over moral norms in deciding whether a will makes adequate provision for proper maintenance and support. It is important to understand that British Columbia’s Wills Variation Act (WESA) is different from other “dependent’s relief” legislation in other provinces. Alberta’s Testator’s Maintenance Act for example, children can only apply to vary a will based on need and any award is paid monthly. In British Columbia, children can successfully apply to vary a will without any need and any award is usually an amount of money or percentage of the estate.

Even within Kerrisdale, different lawyers hold different views on the Wills Variation Act. On one side is a senior lawyer who strongly supports testamentary autonomy, reasoning that his obligations to his children ended after giving them an education, a home and love, and that he should have the right to decide whether to leave them a share of his estate. On the other side, Trevor Todd strongly supports a child’s entitlement and even right to an inheritance. In 1983 and then in a British Columbia Law Reform Commission report recommended changing the Wills Variation Act provisions for children to a needs-based system like that in Alberta. The government has not followed this recommendation.

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