Can Someone Contest Your Will in BC? Wills Variation Explained

What is wills variation?

Wills variation is a legal process under WESA Section 60 that allows certain people to ask the BC Supreme Court to change the distribution in a will. Unlike some jurisdictions where a will is absolute, BC law imposes a moral and legal obligation on will-makers to provide for their spouse and children.

If the court finds that a will doesn't make "adequate provision" for a spouse or child, it can rewrite the distribution — sometimes dramatically.

Who can make a wills variation claim?

Only two categories of people:

• Spouses — married or common-law (2+ years in a marriage-like relationship)
• Children — including adult children of any age

No one else can bring a wills variation claim — not siblings, not parents, not friends, not charities. The right is limited to spouses and children only.

The 180-day deadline

A wills variation claim must be filed in the BC Supreme Court within 180 days of the grant of probate. This is a hard deadline. Courts have very limited discretion to extend it.

This is also why executors should wait at least 210 days before distributing estate assets — to allow for possible claims plus processing time.

What the court considers

When deciding whether to vary a will, the court looks at two separate sets of considerations:

Legal obligations

These are obligations that would be enforceable during the will-maker's lifetime:

• Support obligations to a spouse
• Child support obligations
• Contractual obligations (like a separation agreement)

Moral obligations

This is where it gets subjective. The court asks: would a "judicious parent" or "judicious spouse" have made this provision? Factors include:

• The length and nature of the relationship
• The claimant's financial needs and means
• The size of the estate
• The claimant's contributions to the will-maker's estate or welfare
• The will-maker's reasons for the distribution
• Other obligations the will-maker had
• Community standards and expectations

Spouses and wills variation

Spousal claims are the strongest. BC courts consistently hold that a long-term spouse is entitled to a fair share of the estate, regardless of what the will says. A will that completely disinherits a surviving spouse of a decades-long marriage will almost certainly be varied.

The court's approach is roughly analogous to family law: if the couple had divorced, what would the spouse have received? The estate should provide at least that much.

Children and wills variation

Children's claims are more complex and depend heavily on the circumstances:

Minor or dependent children

A will that fails to provide for minor or financially dependent children will very likely be varied. The moral obligation to provide for dependent children is strong.

Adult independent children

This is the more contested area. The leading BC case (Tataryn v. Tataryn Estate, a Supreme Court of Canada decision) established that adult independent children have a weaker moral claim than spouses or dependent children, but they're not without rights.

Courts consider:

• Did the will-maker have valid and rational reasons for disinheriting the child?
• Is the disinheritance consistent with community standards?
• Did the child contribute to the family or the will-maker's welfare?

How to reduce the risk of your will being varied

You cannot prevent a wills variation claim entirely — it's a statutory right. But you can reduce the likelihood of success:

• Provide for your spouse: Courts will almost always vary a will that disinherits a long-term spouse
• Document your reasons: If you're leaving a child less (or nothing), write a separate letter explaining why — dated, specific, and rational
• Get independent legal advice: A lawyer can help structure your will to withstand a challenge
• Consider a codicil or letter of wishes: These provide context for the court, even though they're not binding
• Keep records: If estrangement or misconduct is your reason, keep documentation

The executor's role in variation claims

If a variation claim is filed, the executor must:

• Not distribute assets until the claim is resolved (or the 210-day period expires)
• Defend the will on behalf of the other beneficiaries
• Engage a lawyer (paid from the estate)
• Comply with court orders regarding the variation

For more on executor responsibilities, see: Executor Duties in BC