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?
The answer is yes and no. When there is a minor, the parties can still attempt settlement of the dispute, but the Public Guardian and Trustee (the “PGT”) and the Court have to be involved. No one, including the PGT, can consent to a wills variation agreement on behalf of a minor. When minors are involved in a wills variation dispute, an application to vary the Will must be made to the Court and the PGT must be served with a copy of the application. However, that does not mean that the parties have to spend a fortune on litigation.
For various reasons, a settlement may be in the best interest of a minor even though the settlement may on its face reduce the share of a minor beneficiary. For instance, when there is a possibility that contested litigation may deplete a small estate, it may be more sensible to attempt a reasonable settlement to preserve the estate funds for beneficiaries, including the minor.
Once the legal proceeding is commenced by filing a Notice of Civil Claim, the PGT will usually provide written comments to the Court with respect to the merits of the settlement proposal. If the PGT is of the opinion that the settlement proposal is reasonable in the circumstances of the case, and the parties are all in agreement, then the Court is likely to vary the Will as agreed and/or recommended by the PGT.