March 1, 2016 MasterEditor

Variation of Wills


In our province the Supreme Court has the ability to vary a will pursuant to the Wills, Estates and Succession Act. Spouses and children of the will-maker (formerly known as the testator or testatrix) are entitled to pursue a court action for a greater share of an estate.

Spouse is defined as a person who is married to the will-maker. For non-married persons this includes a person who lives with the will-maker in a marriage-like relationship, including a relationship between persons of the same gender, and has lived in that relationship for a period of at least two years.

However, when spouses are separated the surviving spouse cannot seek a variation of a will. In the case of legally married spouses who are separated and an event occurs that causes an interest in family property within the meaning of the Family Law Act to arise, the surviving spouse cannot pursue a claim.  In the case of persons in a marriage-like relationship (common law spouses) they also do not have the ability to pursue a claim with respect to each other’s wills, if one or both of them had terminated the relationship.  However, it is important to note that a separated spouse may still be able to pursue a claim for division of family property pursuant to the Family Law Act if they still are considered spouses under that legislation.

The time limit for pursuing an action to vary a will is 180 days from the date the representation grant (formerly known as grant of probate) is issued and a copy of the Notice of Civil Claim is to be served on the trustee of the estate no later than 30 days from the expiry of the 180 days limitation period.

Often the courts are called upon to balance competing claims between spouses and children. In determining the appropriate award for a spouse, the court must consider both the legal and moral obligations owed to the spouse by the will-maker.  Assessing the legal obligations includes a consideration of the property division and maintenance obligations that would have arisen in favour of the surviving spouse had the will-maker not died.

The moral obligation owed to a surviving spouse is usually harder to determine than the legal obligation. The size of an estate and the prior arrangements between the will-maker and the surviving spouse are often very important factors in determining whether to vary a will.

A will-maker usually doesn’t owe any legal obligation to an adult, independent child, however, the courts recognize that the will maker may owe a moral duty to provide a share of his or her estate to a surviving child.

When the size of an estate requires the court to prioritize the claims of spouses and children, claims based on legal obligations such as owed to spouses and minor children, will generally take precedence over claims based only on moral obligations. Generally, the legal and moral obligations owed to a spouse are given greater weight and may be satisfied in priority to the obligations owed to independent, adult children.

The case law that exists with respect to will variation claims goes back many decades and continues to evolve over time. Therefore, it is important that a surviving spouse or child that is considering pursuing a wills variation claim, should consult with a lawyer who has experience with these type of claims.  In wills variation claims the usual rule is that the unsuccessful party has to bear his or her own costs and may also have to pay the costs of the successful party.  Despite this general rule, in several cases the court has ordered that the costs of all parties are paid out of the estate.  In those cases, the costs are payable out of the estate as the issues arose from the provisions of the will and the parties were left with no alternative but to litigate a claim.

Generally the role of the trustee of an estate is neutral. The trustee will provide the court with information regarding the value of an estate and any reasons the will-maker gave for making the dispositions in the will or for not making adequate provision for his or her spouse or children.  When the trustee adheres to this neutral role, he or she is generally entitled to recover their costs from the estate.

However, when the person named as the trustee is also as beneficiary of the estate and that person opposes the wills variation claim as a beneficiary, then that person may be required to personally bear the costs involved in unsuccessfully defending the claim.

Again, it is important for all parties to obtain appropriate legal advice regardless of their role within the litigation, as the costs awarded in wills variation actions can be hard to predict and they can be significant.


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