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Exploring the Duties of a Wills Variation Lawyer

Wills are legal documents outlining how a deceased willmaker wishes his or her assets to be distributed after passing. However, there are financial circumstances where the provisions stipulated in the will may not adequately reflect the needs of certain individuals, which leads to the possibility of contesting the will through a process called “Will variation.”

Changing wills can be complex and emotionally challenging. This makes the role of a wills variation lawyer important in this process.

Let us explore how wills variation work, the moral duty of will variation lawyers and how they approach a civil claim to ensure a fair share of estate assets.

Overview of Wills Variation in Canada

In Canada, Wills Variation, also known as a wills variation claim, is a legal process that allows other family members, such as spouses or children, to challenge a deceased’s will to make adequate provisions for the willmaker’s estate.

For example, the British Columbia Wills Variation Act allows contesting the distribution of an estate if surviving spouses or children believe they haven’t been adequately provided for. This act aims to ensure that a will maker’s spouse or children receive adequate support from the deceased’s estate.

The Legal Framework in Canada

The Provincial Succession Act governs wills variation in Canada. This act, like the Wills, Estates and Succession Act (WESA Act) in British Columbia, empowers certain individuals, like a will maker’s spouse or adult children (or adult child), to challenge a will under certain circumstances.

A family member can ask the Supreme Court in British Columbia to modify the unequal distribution of estate to make adequate provision in line with the estate law. However, the British Columbia Wills Variation Act has limitations to how much it can change the unfair will.

Wills Variation Limitations

  • A civil claim should be filed within six months from the ground of probate.
  • Not everybody is qualified to file a case. Only the married spouses or the adult children are qualified for estate litigation. Common law spouses can also file a civil claim provided that those parties live together for two years before the death of the will maker. (This also applies to same-gender spouses.)
  • The adult child can bring the civil claim, although they may be adults. It doesn’t just apply to people under 19 years old.
  • Not everyone is entitled to an estate grant. The Supreme Court will evaluate the circumstances, including the size of the estate, the assets passed outside the estate, and the situations of the claimant.

How is a “Spouse” Defined in WESA?

According to Section 2 of the WESA Act, two individuals are considered spouses if they were both alive immediately before a relevant time, commonly the date of death of one of them, and they meet one of the following criteria:

  • They were married; or
  • They had lived together in a marriage-like relationship for at least two years.

Spousal status ceases if, in the case of marriage, an event occurs that triggers an interest in family property under the Family Law Act’s Part 5 or if, in a marriage-like relationship, one or both individuals terminate the relationship.

Determining spousal status involves assessing both the expressed and implied intentions of each individual, along with any available objective evidence. Courts interpret this section broadly. However, individuals aren’t considered to have separated if, within one year after separation, they:

  • Begin living together again with the primary purpose of reconciliation and;
  • Continue living together for one or more periods, totalling at least 90 days.

Real-Life Case Example in British Columbia

The case of Bautista vs. Gutkowski Estatei 2023 BCSC 1485, from the BC supreme court registry, involved a will-maker who left only a quarter of her estate to her son, despite abandoning him as a child and refusing to bring him to Canada. The adult child may have grounds to file a wills variation claim arguing that the unfair will doesn’t make adequate provision for their proper maintenance and support.

Here’s a breakdown of the key points:

The Will-maker A woman who had a son in the Philippines.
The Situation She left him at the age of three months and never attempted to bring him to Canada while building her life there. Though she financially supported him through his grandparents, their relationship fluctuated.
The Will The will-maker bequeathed 75% of her estate, valued at $881,119, to her sister and niece, leaving only 25% to her son.
The Son’s Civil Claim He argued that there’s unequal treatment and the will didn’t provide adequately for him, considering the circumstances.
The Court’s Decision During the court proceedings, various factors were considered, including the son’s standard of living in the Philippines. After careful deliberation, BC courts decided to amend the will to ensure a fairer distribution of assets. The son’s share was increased from 25% to 60% of the estate, reflecting adequate just and equitable provision.

Duties and Responsibilities of a Wills Variation Lawyer

Wills variation lawyers work closely with the claimants and guide them through the complexities of wills variation claims. Their duties and responsibilities encompass various aspects, including:

Case Assessment Evaluate the merits of a potential claim based on the specific circumstances and the relevant succession act.
Gathering Evidence Collecting documents, such as the will, financial statements, and other records, to support the claim.
Legal Research Conducting in-depth research on relevant case law and legal interpretations related to wills variation claims.
Communication and Negotiation Facilitate communication with the will-maker (executor of the estate) and other parties involved, attempting to reach a resolution outside of court through negotiation.
Litigation If negotiations fail, a wills variation lawyer will represent the claimant in court, presenting evidence and arguments to persuade the judge and get the court’s opinion to vary the will in your favour.

Strategies and Techniques Employed by Wills Variation Lawyers

During the legal process, a wills variation lawyer will utilize various approaches and techniques to advocate for your interests, including the following factors:

  • Investigating the will maker’s reasons for disinheriting or leaving inadequate provision.
  • Demonstrating the financial need and inability to maintain proper maintenance and support with the current provisions of the will.
  • Presenting evidence of the relationship between the surviving spouse or children to the deceased will maker and the moral obligation to be provided for.
  • Building a strong case based on the relevant succession act and legal precedents.

Seek Legal Support for Wills Variation Claims

Wills variation claims are complex legal matters with strict time limitations and specific eligibility criteria. So, it’s important to obtain legal advice from a qualified wills variation lawyer as soon as possible. They know the details of the process and assess the claim’s viability to help get the adequate provision.

Remember, navigating estate litigation alone can be overwhelming, and seeking legal help from an experienced professional can protect your rights. Your voice is heard for an adequate, just, and equitable outcome.

If you’re dealing with an unfair will or looking for a permanent arrangement, have a dependable wills variation lawyer NG Sidhu to help you achieve adequate just and equitable provision, regardless of the will maker’s reasons.

Frequently Asked Questions

The will maker (or the deceased parent) is legally obligated to include adequate, just, and equitable provisions for any dependent children within the will. This obligation stems from the legal responsibility to provide for dependent children during one’s lifetime, which also influences the assessment of the obligation to provide for them within the will.

Usually, there isn’t a legal requirement to include provisions in a will for independent adult children. However, there are instances where there might be a legal obligation towards an independent adult child due to their contribution to the will-maker’s estate.

In a wills variation claim, the initial assessment of an adequate provision begins by evaluating spousal support and the portion of family assets the surviving spouse would normally receive during a marriage breakdown.

According to the law, divorce cases have a presumption of an equal division of family property. However, the court retains the discretion to deviate from this principle if an equal division would result in unfairness. This same principle applies when examining the legal obligations to a spouse in a wills variation application.

The claim prioritizes different factors in a wills variation case, and these include:

  • The legal obligations held by the will-maker are given precedence over moral obligations.
  • Claims from the spouse or children are prioritized over those of adult independent children or other claimants.
  • Moral obligations vary in strength, and the court must evaluate all relevant facts to determine the weight of each claim. The will should address moral obligations towards all beneficiaries, provided the estate’s size allows for it.

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