Unfair Wills and Testator Autonomy in BC: Striking the Right Balance

In British Columbia, few areas of estate law create more debate than wills variation claims. Many people believe a will reflects the absolute wishes of the will-maker and should not be disturbed. Others argue that fairness and support for vulnerable family members must take priority. BC’s unique legislation attempts to balance these competing interests, and understanding that balance is essential for anyone making or challenging a will.

Why BC Allows Wills Variation: The Modern Purpose of s. 60 WESA

British Columbia is one of the only provinces in Canada where a spouse or child can apply to vary a will. Section 60 of the Wills, Estates and Succession Act (WESA) states:

If a will-maker dies leaving a will that does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may order the provision that it considers adequate, just and equitable in the circumstances.

This wording makes clear that testamentary autonomy is not absolute in BC. A will-maker’s wishes matter, but they must yield when they fall below what the law considers adequate, just and equitable for spouses and children.

Tataryn v. Tataryn: The Leading Case on Autonomy vs. Fairness

The Supreme Court of Canada clarified this balance in Tataryn v. Tataryn Estate, the cornerstone decision on wills variation.

The Court explained:

  • The law does not eliminate a will-maker’s right to dispose of property.
  • Instead, it limits that right where it conflicts with obligations to spouses and children.
  • Testamentary autonomy must yield when it falls below society’s contemporary standards of legal and moral obligations.
  • However, if the will falls within a range of acceptable outcomes, courts should not interfere.

As the Court stated:

Only where the testator has chosen an option which falls below his or her obligations, as defined by legal and moral norms, should the court make an order achieving the justice the testator failed to achieve.

This remains the guiding framework for all wills variation decisions in BC today.

Common Public Objections — and Why the Law Disagrees

Public reaction to wills variation cases is often polarized. Common sentiments include:

  • “Your property is yours; the court shouldn’t meddle.”
  • “If the will is clear, judges should not interfere.”
  • “Judges impose their personal biases on families.”
  • “Parents should be free to leave their money to whoever they want.”

These views reflect a belief in pure testamentary autonomy, a concept that dominated 19th-century law. But BC has deliberately shifted away from absolute autonomy to ensure spouses and children are not left destitute or unfairly treated.

The policy goal is simple:
To prevent dependants from being impoverished, disadvantaged, or arbitrarily disinherited.

When Will a Court Vary a Will? Key Factors Considered

Courts assess both legal obligations (e.g., support for a spouse) and moral obligations (fairness toward adult children). The analysis is holistic, and no single factor controls.

Key considerations include:

  • The relationship between the will-maker and the claimant, including estrangement, neglect, or abandonment.
  • Size of the estate and whether it is large enough to satisfy multiple claims.
  • Contributions by the claimant to the will-maker’s care, property, or financial circumstances.
  • Reasonable expectations the claimant held.
  • Standard of living enjoyed by the will-maker and claimant during life.
  • Gifts or benefits provided outside the will.
  • The will-maker’s stated reasons for disinheritance.
  • Financial need, including disability or hardship of the claimant.
  • Misconduct or poor character where relevant to moral considerations.
  • Competing claims of other beneficiaries.

A will is only disturbed when it falls below the minimum threshold of what is “adequate, just and equitable” in all the circumstances.

The Balancing Act: Autonomy vs. Fairness

BC’s law tries to balance two competing values:

1. Freedom of a will-maker to distribute their property as they wish

The courts respect autonomy and will not intervene if the will is within the acceptable range of outcomes.

2. Fair treatment and support for spouses and children

When a will fails to meet basic legal and moral duties, the court must correct the injustice.

The goal is not to rewrite wills generously—but to bring them up to the minimum standard required by law.

Conclusion

Wills variation law in British Columbia recognizes that autonomy is important, but not absolute. Where a will provides adequately for spouses and children, courts will respect the will-maker’s choices. But when a will unfairly disadvantages dependants or falls outside contemporary norms, s. 60 WESA allows the court to step in.

If you are preparing your estate plan or considering a wills variation claim, understanding this balance is essential. Proper legal advice ensures your intentions are respected—or your rights are protected.

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