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.” 

The Court also said that the WVA should be read in light of modern values and expectations and current societal norms. Two types of norms (or expectations) must be addressed: (a) legal norms and (b) moral norms.

The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.

The first step in the analysis a spouse’s entitlement to a variation is therefore determining his or her legal claim to a share of the deceased’s estate. In other words, what obligations did the deceased have to their spouse during his or her lifetime which are an enforceable legal obligation under the WVA.

A surviving spouse could have a legal claim to a deceased’s estate based on the spouse’s notional entitlement under the Family Relations Act, R.S.B.C 1996, c. 128 (the “FRA”). In determining a spouse’s FRA entitlement, it may be appropriate for the Court to employ a hypothetical calculation and division of family assets between the testator and the claimant assuming that the parties had separated and the assets were divided between them immediately before the date of the testator’s death. Assuming the court applies the notional separation rationale, a spouse would be entitled to a one half interest in the combined family assets owned by them and the deceased, subject to the Court’s jurisdiction to consider whether a reapportionment is necessary to achieve fairness.

Factors that give rise to reapportionment include the length of the relationship, whether assets had been acquired by way of gift or inheritance or if one of the party’s had brought significant assets into the marriage. Even in a marriage of moderate length, the majority of assets can be divided equally between a claimant and the deceased on the notional FRA analysis without reapportionment.

Every situation depends on the facts and the expectations and behaviours of each spouse during the course of their relationship. However, where a court employs the above calculation, it can be useful in providing a starting pointing for determining a spouse’s entitlement under a WVA claim.