Wills Variation: The Cinderella stories, the Cleveland Browns and the Brady Bunches

Blended or step families are becoming the new norm in Vancouver, British Columbia, and all over Canada. There are many reasons people move on to a new spouse or partner. Sometimes it is because they are widowed or widower and are looking to begin a new relationship, and sometimes they realize after having children that their relationship is no longer working and begin looking elsewhere for love. Whatever the reason, where there are children involved, there are a number of possible conflicts and issues.

Many times, the age of the children from the first marriage or relationship will determine the type of relationship they will have with a parent’s new spouse. For instance at one end of the spectrum, the new spouse may seem “evil” (like in Cinderella) to children. The children may see the new spouse as a gold digger who is only looking out for themselves to older or adult children. On the other end of the spectrum, normally where the new spouse is introduced at a very young age (like the Brady Bunch), the a step parent may not be considered by the child to be any different than a real parent (the only steps in the Brady household lead to the second floor). Somewhere in the middle of the spectrum is the friendly step-parent, who may be seen by the children as a friend, but not quite a parent (like Cleveland Brown).

The question is: What does this mean for Wills Variation?

Part 4, Division 6 of the Wills Estates and Succession Act, [SBC 2009] c 13 (WESA), provides that spouses and children of a deceased may apply to vary the deceased’s will if it does not adequately provide for their maintenance or support. While the term spouses is defined much like it is in the Family Law Act, the term children is not defined by WESA.

In the case of Hope v. Raeder Estate, 1994 CanLII 2185 (BC CA), the court upheld the lower court’s finding that “children” means only those who are natural children of a person and those who are adopted pursuant to the Adoption Act. The court of appeal considered whether, given the changing types of relationships, they should change the definition to include a broader definition of “children” so as to include those whose parents live in a marriage-like relationship with a new spouse (in other words whether to include step children). Justice Lambert declined to do so. Based on this case, a step-child cannot apply to vary a step-parent’s will unless they have been officially adopted by said step-parent.

Some might question: Why does this matter? There are many situations in which this may become an important fact for a parent, child, step child, or step parent to know. This is especially so where a child’s parent dies before the step parent and/or new spouse.

In the Cinderella example, assume the children’s parent (the first spouse) has died before the new relationship began. Assume the children of the first relationship or marriage are adult or near-adult at the time of the death and that the parents had amassed a great deal of wealth during the first parent’s lifetime. During the new relationship, the parent chooses to put all of the assets from the first relationship or marriage into joint names with the step-parent and/or new spouse on the basis that the step-parent and/or new spouse will leave all of the assets to the children from the first marriage. Assume the step-parent and/or new spouse chooses not to do so. The children from the first marriage have no recourse to apply to vary their will.

Alternatively, in the Brady Bunch example there is no real step parent at all, but two loving parents whom the children from the first relationship or marriage have known as “mom” or “dad” for most, if not all of their lives. Assuming only one spouse has children from a previous marriage, the children from the earlier relationship or marriage would have no recourse to ensure their proper care and maintenance is adequately provided for by one of their parents. Alternatively, if both spouses have children from previous relationships or marriages, some children will be placed on different footing than the others with respect to wills variation claims.

In the Hope case, Justice Lambert made it clear that the court was to intentionally leave it up to the legislature whether they wished to extend the meaning of “children” beyond natural children.  WESA is socially remedial legislation and came into force on April 1, 2014. Given the increase in blended families, it is interesting that the legislature did not change the meaning of children to include those who fall under the status “step children”and whom are not adopted by their “step parents” when elsewhere in WESA, the legislature seems to recognize the increase in blended families and has addressed concerns specific to them and protecting “step-children”. For example, in Part 3, Division 1, dealing with people who die without a will, the legislature provided that where the deceased had children who were not also children of the spouse, the spouse would receive a lesser portion of the intestate’s estate.

Go to top
Richter Trial Law