In BC, you can apply for a will variation if you are a spouse (married or common-law partners who lived together for at least two years) or a child (biological or legally adopted, regardless of age). You must file within 180 days of the representation grant. Courts consider legal obligations, relationships, financial needs, and the deceased’s intentions when evaluating claims. Understanding these eligibility requirements is just the first step in steering through this complex legal process.
Legal Rights of Spouses Under BC’s Wills Variation Act
When your spouse passes away in British Columbia, you have specific legal protections that may override the terms of their will. Under Section 60 of the Wills, Estates and Succession Act (WESA), you can apply to the court to vary your spouse’s will if you believe the provisions do not adequately provide for you.
Both married and common-law partners who lived together in a marriage-like relationship for at least two years before death qualify as spouses. However, if you were separated for more than two years with the intention to remain apart, you will lose your standing to make a claim.
The court will consider your legal entitlements, your relationship with the deceased, any promises made, financial contributions to the relationship, and your current needs when evaluating your application.
The Qualifying Criteria for Adult and Minor Children
Unlike spouses, children of a deceased person in British Columbia have distinct qualifying criteria for bringing a wills variation claim under WESA. Both biological and legally adopted children qualify, regardless of their age. This means adult children have the same standing as minor children to challenge a will.
In BC, both biological and adopted children can challenge a will at any age under WESA’s variation provisions.
The law does not distinguish between children born within marriage or outside it. However, step-children do not qualify unless they were legally adopted by the deceased. Similarly, foster children fall outside the eligible category.
When evaluating a child’s claim, courts consider factors including the relationship with the deceased, financial need, any assistance provided during the parent’s lifetime, and reasons for disinheritance.
While courts respect testamentary freedom, they balance this against moral obligations to provide for children.
Time Limitations for Filing a Wills Variation Claim
The strict time limitations governing wills variation claims in British Columbia cannot be overlooked by anyone considering such legal action.
You must file your claim within 180 days (six months) from the date the representation grant is issued by the court. This deadline is strictly enforced, and courts rarely grant extensions.
If you miss this critical deadline, you will likely lose your right to contest the will permanently. The clock starts ticking from the grant date, not the date of death or when you learned about your inheritance.
To protect your interests, you should consult with an estate litigation lawyer as soon as possible after learning about a potential claim to guarantee you do not forfeit your rights through delay.
Key Factors Courts Consider When Evaluating Claims
British Columbia courts examine several critical factors when determining whether to vary a will’s provisions under WESA legislation.
They will evaluate the will-maker’s legal and moral obligations to their spouse and children, weighing these against the testator’s autonomy to distribute assets.
The court evaluates the relationship between the will-maker and claimant, considering any estrangement, financial support provided during life, and promises made before death.
Other key considerations include the claimant’s financial needs, contributions to the estate, size of the estate, and gifts received outside the will.
The will-maker’s documented reasons for disinheritance carry significant weight.
Courts apply the “reasonable will-maker” standard, evaluating whether the distribution is rational and fair in the circumstances while balancing family obligations against testamentary freedom.
Strategic Estate Planning to Minimize Variation Risks
To effectively shield your estate from potential variation claims, proactive planning measures should be implemented well before end-of-life considerations arise. By understanding the legal framework in BC, you can take steps to protect your bequeathed wishes while balancing moral obligations to family members.
| Strategy | How It Works | Benefits | Limitations |
|---|---|---|---|
| Alter ego/joint partner trusts | Assets transfer during lifetime | Bypass probate and wills variation | Only available to those 65+ |
| Beneficiary designations | Direct transfers outside estate | Not subject to variation claims | Limited to specific assets |
| Documented reasoning | Explain unequal distributions | Courts consider rational explanations | Not binding on court decisions |
| Family law agreements | Pre/post-nuptial contracts | Can waive variation rights | Must meet legal requirements |
Remember that courts will examine the overall fairness of your estate plan, particularly regarding moral obligations to spouses and children.
Common Challenges in Blended Family Situations
Blended families face particularly complex challenges when maneuvering BC’s wills variation landscape, creating multiple layers of potential conflict not present in traditional family structures.
The interplay between legal and moral obligations becomes especially complicated when stepchildren and biological children are involved.
If you are in a blended family, you should be aware of these critical considerations:
- Stepchildren can’t make variation claims, but your spouse can make claims that indirectly benefit them
- Prior family law agreements may impact your estate planning options
- Competing moral obligations between first and second families often require sophisticated trust structures
- Documenting your rationale for distribution decisions strengthens your will against potential variation
Being proactive about these challenges through thorough estate planning can help protect your estate intentions while balancing moral obligations to all family members.
Mediation vs. Litigation: Resolving Wills Variation Disputes
When families find themselves in conflict over a will’s validity or fairness, they face a critical decision between pursuing mediation or litigation to resolve their wills variation dispute. Your choice can greatly impact the outcome, cost, and emotional toll of the process.
| Aspect | Mediation | Litigation |
|---|---|---|
| Cost | Generally less expensive | Often costly with legal fees |
| Timeline | Typically faster (weeks to months) | Can extend for years |
| Control | Parties maintain decision-making power | Judge makes final decision |
Mediation offers a collaborative approach where a neutral third party helps facilitate discussion and compromise. It is confidential, preserves relationships, and provides flexible solutions. Litigation, while sometimes necessary for complex disputes, follows a formal court process with rigid procedures and public proceedings.
How Vest Estate Law Can Help
Since traversing the complex landscape of wills variation requires specialized knowledge, Vest Estate Law stands ready to provide the expertise you need throughout this challenging process.
As a boutique firm focused exclusively on estate law across Alberta and BC, our team specializes in both preventative planning and litigation when necessary.
We can assist you with:
- Evaluating whether you have standing to bring a wills variation claim
- Documenting rational reasons for unequal distributions in your estate plan
- Implementing strategies like trusts and beneficiary designations to limit exposure
- Representing you effectively in mediation or court proceedings if disputes arise
Do not navigate BC’s complex wills variation regime alone.
Work with Vest Estate Law’s dedicated team for guidance tailored to your specific circumstances, whether you are planning your estate or considering a variation claim.
Frequently Asked Questions
Can Step-Children Apply for a Wills Variation?
No, step-children cannot apply for a wills variation in BC. This legal remedy is only available to biological or adopted children and spouses (married or common-law) of the deceased.
Are Common-Law Relationships From Other Provinces Recognized for Claims?
Yes, your common-law relationship from another province is recognized for wills variation claims in BC as long as you meet BC’s definition of a spouse under WESA, including the two-year cohabitation requirement.
Can a Disinherited Child Challenge a Will Posthumously?
Yes, a disinherited child can challenge a will posthumously through their estate. If you are an executor for a deceased child’s estate, you can initiate a wills variation claim within the 180-day timeframe.
How Are Overseas Assets Treated in Wills Variation Claims?
Overseas assets are not automatically subject to BC’s wills variation claims. You will need to evaluate the asset’s jurisdiction, applicable international laws, and whether courts in BC have authority over foreign property.
Can Executors Refuse to Defend Against a Variation Claim?
No, executors cannot refuse to defend against a variation claim. You are legally obligated to uphold the will’s terms and represent the estate’s interests in any litigation or proceedings.
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Myron Plett
WILLS and ESTATES LAWYER
Myron is a seasoned litigator with nearly twenty years of experience and a broad range of skills that has led to significant successes in the Provincial Court of British Columbia, the Supreme Court of British Columbia. He has also taken his clients to victory before tribunals such as the Residential Tenancy Branch and the BC Human Rights Tribunal.
