Tag Archives: Wills Variation Act

New Family Law Act and Wills Variation Act Claim

The family law of British Columbia has gone through a major change as a result of the new Family Law Act, which replaced the Family Relations Act and became effective on March 18, 2013.

Under the old Family Relations Act, unmarried spouses are excluded from the operation of the property division and pension division sections, which are available for married spouses only. This means there is no automatic property sharing provisions for unmarried spouses.

As such, under the old Act, a common-law spouse can only rely on common law remedies in order to claim a share of the other spouse’s assets. For instance, a common-law spouse may claim that he or she has made a direct or indirect contribution to the accumulation of the assets of the other spouse such that he or she is entitled to a share of the assets, failing which, he or she may not share the assets of the other spouse.

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Settlement of Wills Variation Claims Involving Minors

Under the Wills Variation Act of BC, a spouse or child of a deceased may apply to the Court to vary the deceased’s Will if the Will does not make adequate provision for the proper maintenance and support of the spouse or child.

In some cases, adult beneficiaries and adult challenger(s) of the Will may agree amongst themselves to distribute an estate in a way that is different than that the deceased has directed in the Will without the necessity of a court application. But what if a minor is a named beneficiary in the Will? Can the challenger(s) of the Will reach an agreement with all the beneficiaries, including the minor, to distribute the estate differently than the terms of the Will direct?

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Reproductive Technologies and the Wills Variation Act

In order to qualify to bring an action under the Wills Variation Act, a child must be either the biological or adopted child of the deceased/testator. In the modern age with various methods of conception and blended families, this can sometimes have unsatisfactory consequences.

Step-children are not entitled to bring WVA claims. Also, a birth child of a testator who has been adopted by another party is prevented from applying under the WVA. However, court challenges are testing the limits of whether a person qualifies as a child for the purposes of the WVA. In Doman Peri v. Doman Estate, the deceased was the husband of the plaintiff child’s mother but not the child’s natural or adoptive father. Despite supporting her during periods in her life and being listed as her father on her birth certificate, the plaintiff did not qualify as a child and was barred from bringing a WVA claim. The court held that the facts did not justify a reconsideration of a previous Court of Appeal decision which limited the definition of children in the WVA to natural or adopted children. While the court did not alter its previous decision, they left open the possibility of doing so in a “more compelling factual foundation.” 

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When can you launch a Wills Variation Act (“WVA”) proceeding?

Sometimes the contents of a will are known before probate. In these circumstances, those spouses and children that have not been adequately provided for under the will invariably turn their mind to starting a Wills Variation Act claim before probate. This is prudent considering the limitation period for WVA claims is short. A WVA claim is statute barred 6 months after probate. So, when is the earliest date on which a potential claimant can launch a WVA proceeding?

Section 3(1)(a) of the WVA provides that a proceeding must be commenced “…within 6 months from the date of the issue of probate of the will in British Columbia…” You might ask: does this language prevent a person from bringing a WVA proceeding before probate? The BC Court of Appeal considered this question in the 1938 case of Murgatroyd v. Stewart. Although the Court considered the old Testator’s Family Maintenance Act (“TFMA”), the statutory language at issue was the same. The majority of the Court held that the right to start a TFMA proceeding before probate is not restricted by the “within 6 months” language because that language establishes a limitation period and is therefore meant to apply after probate. In other words, the majority held that “within 6 months” is meant to impose a final limit on when a person can launch a proceeding, not limit the earliest date on which a person can launch a proceeding. On the other hand, the minority held that the Court can only hear a proceeding between the date of probate and 6 months after the date of probate.

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Wills variations- British Columbia leads the way

Those of you who follow our blog and publications know that the Wills Variation Act of B.C.  permits a spouse ( formally married or “common law” or same sex)  or a child ( biological or legally adopted) to successfully challenge a Will if the deceased spouse or parent did not fulfill either legal or moral obligations as determined by a court.  Clark Wilson’s various materials on line set out the various considerations for a Wills Variation and operative principles.

There have been  attempts over the decades to cut back the scope of  our Wills Variation Act.  Counsel opposing  Wills Variation Act  claims and various commentators have attempted to argue that the Act should either be judicially interpreted or statutorily changed to permit variations based only upon need or  historical financial dependence. That is, if  a child or spouse, is in financial need and the testator failed to make inheritance provisions then a variation should be permitted but otherwise, testamentary autonomy ought to prevail.

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SCC decides not to hear appeal in Mawdsley v. Meshen

Yesterday, the Supreme Court of Canada dismissed Dennis Mawdsley’s application for leave to appeal from the BC Court of Appeal’s decision in Mawdsley v. Meshen

In Mawdsley, the deceased had taken various estate planning steps prior to her death that had the effect of reducing the size of her estate. The common law spouse of the deceased attempted to have these transfers of property set aside as contrary to the Fraudulent Conveyance Act (“FCA”). In dismissing the action, the BC Court of Appeal noted that for a transaction to be a fraudulent conveyance, the transfer must be made with an intent to delay, hinder or defraud someone. Accordingly, it was possible for the deceased to make legitimate transfers of property that had the effect of decreasing the size of her estate and minimizing the assets available to satisfy a Wills Variation Act claim. The Court of Appeal also confirmed earlier decisions of the Supreme Court that unless spouses are separated at the time of death, a spouse is not a “creditor or other” under the FCA, and thus has no standing to bring a claim under the FCA.

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Determining Spousal Status Can Be Difficult

The number of people in common law relationships has steadily increased over the years. While many couples may actively choose a common law relationship over marriage, others may do so inadvertently, making a decision to cohabite without really considering whether they are, or intend to be, in a common law relationship.

In the estate context, status as a common law spouse is significant. Under the Estate Administration Act, a common law spouse may be entitled to all or a part of the estate of a deceased who died without a will. Under the Wills Variation Act, a common law spouse may have a claim against an estate where the deceased did have a will but the common law spouse was not adequately provided for.

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Wilson v. Lougheed, 2012 BCSC 1166 – Court Awards Special Costs Against Executor in Wills Variation Claim

In order to discourage improper conduct during the course of litigation, “special costs” may be imposed on litigants that have acted reprehensibly during the course of litigation. Special costs are a much higher award of costs- typically at least 80 percent of actual costs of the party awarded them; sometimes even higher. This percentage is significantly higher then awards of costs that  are typically awarded in cases where the court does not signifiy it’s censure of the conduct of the offending litigant.

One type of estate litigation where executors are almost never fixed with special costs are Wills Variation Act (WVA) claims. Because an executor (who is a fiduciary) has the duty to be neutral in WVA claims, special costs are rarely imposed on the executor. Nevertheless, in Wilson v. Lougheed [Wilson], a recent decision of the British Columbia Supreme Court, the Court found occasion to award special costs against an executor due to his “flagrant violation of his duty to not prefer his person interests (and grudges) over his fiduciary obligations.”

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Determining a spouse’s entitlement under a Wills Variation Act (“WVA”) claim

In 1994, the Supreme Court of Canada set out the principles to be applied in British Columbia to the WVA. The Court held that there were two interests protected by the WVA: (1) the adequate, just and equitable provision for the spouses and children of testators covered by the WVA; and (2) testamentary autonomy of the testator. The Court held:

The Act did not remove the right of the legal owner of property to dispose of it upon death.  Rather, it limited that right.  The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was “adequate, just and equitable in the circumstances.” 

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Kelly v Bell, 2012 BCSC 841

When is a house not a house?

When it’s a divisible asset!

That’s not a very good joke. But it is an interesting question. For many, owning a home is the ultimate financial dream. At the same time, home ownership means more than just financial stability. It’s where we raise our families and where we celebrate special occasions, it’s an oasis, a familiar place in our busy lives. With so much wrapped up in this “asset” it makes sense that we may want to gift a house to a child for practical or sentimental reasons when the time comes for us to shuffle off this mortal coil. The problem is, as much as a house is an extension of it’s owner, it’s also a financial asset. This can strain the relationship between an individual’s intention, and equity provisions under the Wills Variation Act.

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