A general principle of law is that a person making a Will (a “Testator”) has the “testamentary freedom” to dispose of his or her property as he or she wishes. An important exception in British Columbia is set forth in the Wills Variation Act which provides that a spouse or child of the Testator may apply to Court to vary the Will to provide for an “adequate, just and equitable” variation. In a successful lawsuit the Will is not ruled invalid but it is changed or varied (hence the name of the statute – the Wills Variation Act).
Only the Testator’s spouse or children (biological or formally adopted) may apply to vary the Testator’s Will under the Act. There are no restrictions on which children may apply under the Act, whether they be minors or adults, dependent or self-sufficient.
A “spouse” is either a person who is married to the Testator or a common-law spouse of the Testator. A “common-law” spouse is one who is living and cohabiting with the Testator in a marriage-like relationship. This definition will include same-sex relationships.
If a spouse or child wishes to apply to vary the Will, they must do so by commencing an Action within six months from the date probate of the Will is granted.
In determining what would be adequate, just and equitable to vary the Will, the Courts will consider a large number of factors. First and foremost are any undischarged legal obligations and then the Court will consider “moral” obligations. Some of the other important considerations are: the Testator’s intentions, the standard of living of those involved; the size of the estate; the health of all those involved; how the spouse or child cared for the Testator; gifts or assistance provided by the Testator, contributions to building the Testator’s estate and any misconduct or estrangement by the spouse or children.