Wills Variation for Spouses under BC’s Wills, Estates and Succession Act

Wills variation for spouses is a part of BC’s Wills, Estate and Succession Act. Section 60 of BC’s Wills, Estates and Succession Act provides that a spouse (including a common law spouse) may apply to vary a deceased person’s will where they do not make adequate provision for their spouse or children. However, courts will balance this obligation to provide against a will maker’s autonomy to decide what to do with their assets. The recent BC Supreme Court Decision of Klotz v. Funk 2019, BCSC 817 demonstrates courts will respect a testator’s autonomy if their provision for their spouse is within a reasonable range.

Section 60 of WESA states:

Maintenance from estate
60 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.

What does “adequate”, “just” and “equitable” mean? BC courts have measured “adequate, just and equitable” by comparing what the surviving spouse received under the will with what they would have been entitled to if they had separated under BC’s Family Law Act. This was the approach set out by the Supreme Court of Canada in the seminal case of Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807.

The BC Supreme Court recently revisited the law in this area in Klotz v. Funk, 2019 BCSC 817, a case in which a husband sought to vary his late wife’s will to seek a greater share of the family home. The couple originally owned the home in joint tenancy, but the wife severed joint tenancy to give each of them a half interest in the home as tenants in common. Under both of their wills, the surviving spouse would retain a life estate in the family home (an ability to live there for their lifetime) and the respective half interest in the family home would be passed to their respective children. The husband sought to have wife’s will varied so that the entirety of the home remained with him.

In Klotz, the court summarized the approach taken to evaluating the husband’s claim:

[49]        To determine if the deceased’s Will has honoured the deceased’s legal obligations to the plaintiff, the Court looks to what the plaintiff’s interest in the property would have been at notional separation under the relevant family law property regime. The Court asks if the Will respects the deceased’s obligations on death by considering what her obligations would have been if she and the plaintiff had separated. Having regard to the deceased’s distribution of assets and other expenditures after her September 2013 diagnosis, I view September 2013 as the appropriate notional separation date.

[50]        Generally, each spouse is entitled to an equal share of family property. Family property may be divided unequally if equal division would be significantly unfair. Spouses’ unequal financial contributions do not usually constitute significant unfairness, and therefore do not constitute grounds for unequal division of family property. In sum, the spouses’ respective percentages of pecuniary contribution to family property are not usually determinative of their proportionate shares.

[51]        To determine if the deceased’s Will has honoured the deceased’s moral obligations to the plaintiff, the Court looks to contemporary community standards. The Court asks how would society expect a judicious spouse to have provided for the plaintiff in the circumstances.

The court held the deceased’s will made adequate provision and refused to vary it. It found that had the parties of separated before passing, they likely would have received a 50/50 split of the family home. Additionally, the court reiterated the risk of joint tenancy in that either joint tenant may sever it at any time:

[56] In 2008 when the Surrey Property was registered in the names of the couple as joint tenants, I am satisfied that the couple were advised as to the legal nature of a joint tenancy. The explanation as to the legal nature of a joint tenancy and the possibility of severance is well-known common advice given by the lawyers or notaries in our Province. There is no basis to presume that professionally competent advice was not given to the couple at that time. The plaintiff did not otherwise assert such.

[57] If the plaintiff had wished to protect himself from severance of the joint tenancy, he could have entered into a marriage agreement to protect his now asserted interest. Marriage agreements are common and their use have been encouraged by our Legislature: see e.g., FLA, s. 92.

Wills Variation for spouses can be complicated as they involve not only the Wills, Estate and Succession Act, but also the Family Law Act. If you have questions about whether you are entitled to share in your spouse’s estate, give our firm a call at 604.264.5550 to set up a consultation.