The Process of Proving and Varying a Will

What is a wills variation claim?

Pursuant to section 60 of the Wills, Estates and Succession Act, SBC 2009 chapter 13, wills variation refers to the principle that where a testator has failed to make adequate provision for their spouse and children in their will, the spouse and/or children may bring an application to court to have the will “varied” so that they can be adequately provided for. Prior to bringing a wills variation claim, however, a will must first be proved in solemn form.

What does it mean to prove a will in solemn form?

In order for the contents of a will to be established as valid and enforceable, the will must first be proven in its solemn form. This means that a will must be shown to be real, authentic and representative of a testator’s true intent. Once a will has been proven, the executor or administrator of an estate can begin to administer the contents of the estate based upon the instructions in the will.

Can proving a will and a wills variation claim be heard together?

The landmark case in determining whether additional claims could be brought at the same time a will was proved was Clark v Nash, [1986] BCJ No. 1655. In Clark v Nash, the Plaintiff started an action to have the will of the deceased proved in solemn form. Additionally, the defendants, including the testator’s husband, wanted to bring a claim seeking a variation of the will. In paragraph 10 of the Clark decision, the court finds that:

“Notwithstanding the desirability of expediting litigation and making optimum use of the practical aspects of consolidation or the hearing at the same time of causes or issues arising out of the same facts, and involving some or all of the same parties, the procedure and hearing involved in the proof of a Will in solemn form are, and should be limited to, the aspects of execution, testamentary capacity or want of knowledge or, of course, fraud.”

This essentially means that bringing a claim to vary a will, before the will has been proved, is premature. It may be possible that the will cannot be proved because the testator did not have the mental capacity to create the will, or it may be possible that an earlier will may be proved to be the correct will instead. In either of these cases, it may not be relevant, or even possible to bring a will’s variation claim.

In other words, it is not possible to alter a will before it is shown to be valid. Although this has been affirmed several times, it was most recently affirmed by the British Columbia Supreme Court in Naidu v Yankanna (Estate), 2018 BCSC 878, where the court stated that “A beneficiary or party seeking a variation must first show the will is valid before varying it.”

If a party wishes to bring a wills variation claim against a testator’s estate, proper procedure, pursuant to case law, is to bring the claim once a will has been proved.

If you need help regarding the litigation of an Estate matter, contact Richter Trial Lawyers at 604.264.5550 or go to our website at: https://richtertriallaw.com/

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