Wills variations – British Columbia leads the way


Those of you who follow our blog and publications know that the Wills Variation Act of B.C.  permits a spouse ( formally married or “common law” or same sex)  or a child ( biological or legally adopted) to successfully challenge a Will if the deceased spouse or parent did not fulfill either legal or moral obligations as determined by a court.  Clark Wilson’s various materials online set out the various considerations for a Wills Variation and operative principles.

There have been  attempts over the decades to cut back the scope of  our Wills Variation Act.  Counsel opposing  Wills Variation Act  claims and various commentators have attempted to argue that the Act should either be judicially interpreted or statutorily changed to permit variations based only upon need or  historical financial dependence. That is, if  a child or spouse, is in financial need and the testator failed to make inheritance provisions then a variation should be permitted but otherwise, testamentary autonomy ought to prevail.

This attempt however to restrict the Wills Variation Act was soundly rebuffed in the 1994 decision of a Supreme Court of Canada decision known fondly in our profession  as “Tataryn”. This decision undertook an historical sweep of the origins of the legislation which unearthed the fact that it was rooted in the universal suffragette movement to give women greater inheritance rights. It had a profound moral and social justice underpinning and therefore our B.C. court decisions were accurately interpreting the legislation in accordance with contemporary social mores and should continue to do so.

This meant to our Supreme Court  that moral and ethical considerations were absolutely required to be taken into account in determining whether or not there should be a variation.  Practical consequences? well that means that if a parent excludes a child because he or she marries someone from a  religion or ethnicity which the parent despises  or a child is  gay, there can be no justification for exclusion or even diminishment from the gift that might otherwise had been made had the child abided by the parents prejudices.

The Supreme Court of Canada therefore signalled very clearly that contemporary values, to be gleaned from our Charter of our Rights( although not exclusively) must prevail in interpreting Wills Variation cases.

Attempts in British Columbia in the last number of years to try and bypass the Supreme Court’s powerful decision by seeking a legislative change to the Wills Variation Act also have failed.

We therefore in British Columbia  have a piece of legislation that communicates very clearly to every one of our residents that you simply cannot treat your child based upon prejudice, discrimination, racism or hatred and you will have to determine a fair formula for inheritance for your spouse whether or not it is a short or long, first second or third or formal or common law marriage.

Not so in other jurisdictions- even those as “progressive” in many ways as New York State.  In a summer story reported by the New York Post, the late Frank Mandelbaum required in his Will that his son’s children would not inherit if his son was in a same sex marriage. The will is being challenged as discriminatory but New York state does not have the benefit of the B.C. Wills Variation Act so it will be interesting the type of legal challenge that will be mounted.

For those who fear that the Wills Variation Act creates too much uncertainty or is too much of an intrusion on what a person can do in his or her Will, the numerous benefits ought also to be considered- such as communicating to all Canadians-those who have been here for generations and those who have recently arrived, that our society censures discrimination, prejudice and hatred  based upon gender, ethnicity, skin colour, religion and sexual orientation.  As such, the Wills Variation Act as interpreted by our Courts is a powerful message of both societal and  familial responsibility.