WILLS VARIATION (B.C.)
An application to vary your will can be made by a child or spouse of a deceased. This is an application to seek redistribution of the testator’s estate if it can be established that adequate provision has not been made for the proper maintenance and support of the claimant.
A child or spouse has six months from the date of probate to bring such an application and the executor must not distribute any portion of the estate to beneficiaries under the will until this time period has passed unless the executor has the consent of all persons who would be entitled to apply or is authorized by court order.
In determining whether there should be a variation, a court will consider whether adequate provision has been made for the child/spouse’s proper maintenance and support as well as whether the testator has breached the moral duty that they owed to the child/spouse.
Factors that the court may consider include one’s station in life, the financial need of the plaintiff, intestacy as a standard of public policy, consideration of the future needs of the plaintiff, the type of dependent that the plaintiff was (widow, separated spouse), amongst others.
To address this potential application, the will maker should consider drafting a memorandum or inserting a clause in their will indicating the reason why a spouse/child was excluded from their will or left a reduced gift so that the intention of the will maker can be made known despite their death. This memorandum/clause should make clear that the will maker has considered their spouse/child and their obligation to provide for them and explain why they have chosen not to do so.
See you legal advisor to assist you in moving forward with this very important part of you estate plan and obtain the legal advice you need to leave dispose of your estate as you wish.
The information provided on this website is merely an informative guide and should not be relied upon for legal advice. It is intended to provide general information only. It is recommended that you see a lawyer about your particular legal situation and request legal advice.
©Avery Law Office, September 2011