Wills Variation Act and Fraudulent Conveyances


While there is a general common-law principle that a testator should be free to arrange for the distribution of his or her assets upon death, there are various limitations to testamentary freedom, such as testamentary incapacity. Additionally, the dependants’ relief provisions of the Wills Variation Act (“WVA”) are a significant statutory exception to the principle of testamentary freedom. Dependants’ relief legislation exists in each of the common-law provinces, as well as in many common law jurisdictions outside Canada. Originally intended to ensure that dependent spouses and children were not left destitute when the family’s breadwinner died without making adequate testamentary provision for them, the scope of the WVA, certainly in British Columbia, has been broadly interpreted by the courts.

The essential thrust of the WVA is that when a person dies without making adequate provision for the maintenance and support of his or her surviving spouse and/or children, such spouse and/or children may bring an application to have the court order the provision that it thinks “adequate, just and equitable in the circumstances” (WVA, s. 2).

The jurisprudence relating to the WVA is voluminous. The most significant of these decisions remains that of the Supreme Court of Canada in Tataryn v. Tataryn Estate (1994), 93 B.C.L.R. (2d) 145 (S.C.C.).

The significance of Tataryn is not so much in the result as in the extended historical discussion of “dependant’s relief legislation” in various Commonwealth jurisdictions, and in the outlining of certain over-reaching principles for application. Prior to Tataryn, there was a long-standing controversy as to whether the language of the WVA ought to be interpreted narrowly to provide for minimum financial needs or more expansively to import greater moral obligations on a testator. In Tataryn, the court rejected a narrower needs-based test in favour of a broader definition of moral duty. Madam Justice McLachlin (as she then was), in rendering the court’s decision, held that the WVA must be read in light of modern values and expectations:

The language of the Act confers a broad discretion to the Court. The generosity of the language suggests that the legislature was attempting to craft a formula which would permit the Courts to make orders which are just in the specific circumstances and in light of contemporary standards… Courts are not necessarily bound by the views and awards made in earlier times. The search is for contemporary justice.

In considering the need for a variation, the court held that obligations imposed by law while the testator was alive ought to be given priority. Thereafter, but certainly not unimportantly, moral obligations require consideration and are to be determined according to “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards”.

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