HomeArticles by StevenVarying Wills in British Columbia

British Columbia is a special place, and its laws often deviate from those in the rest of Canada. The statute allowing judges to re-write Wills is perhaps the most intriguing difference in laws affecting family relationships.

In most of Canada, judges have only limited authority to override the wishes of a will-maker –courts typically require proof of financial dependence and need before they are able to intervene. However, the B.C. Wills, Estates and Succession Act allows a spouse or adult child to seek a variation of a Will that does not “make adequate provision for the proper maintenance and support”, and authorizes the court to order “the provision that its thinks adequate, just and equitable in the circumstances.” Financial dependence and need are relevant, but not required, factors.

In determining what is “adequate, just and equitable”, the court applies “contemporary justice”, meaning it must look to current standards, not historical values that may be outdated.

In the recent decision of Lam v. Law Estate, the B.C. Supreme Court varied a Will after concluding the will-maker held “outdated beliefs”. The deceased, Mrs. Law, gave 78% of her estate to her son, and only 22% to her daughter. As well, Mrs. Law had given numerous valuable gifts to her son during her lifetime, and none to the daughter.

The court ruled that the unequal distribution was due to a gender-based bias, and was clearly unfair. In revising the Will to provide 85% to the daughter, the court observed that “contemporary justice does not countenance preferential treatment towards certain children over others based on their gender.” *

Gender bias resulting in unequal distribution is but one example of situations where B.C. courts are free to intervene and override the wishes of a testator. Factors in other cases include reasonable expectations, misconduct/poor character, estrangement, gifts made during the deceased’s lifetime, and the will-maker’s reasons for disinheritance.

Each case will turn upon its unique facts, but it’s clear that B.C. courts are uniquely empowered to ensure that equity is done for all surviving family members.

* In Peden, Smith et al, the court came to a similar conclusion where the unequal distribution was based on sexual orientation.

This article is intended to provide general guidance on the subject matter. Specific advice should be obtained in connection with your particular circumstances.