Did you know that your Will can be changed by the Court under BC’s Wills Variation Act? The Act allows unhappy spouses and children of the deceased to make a wills variation claim to the court to have the terms of the Will altered.

Some basic information about the law around the Wills Variation Act:

A wills variation claim can be made by a spouse or children of the deceased and must be made within 6 months from the date of the issue of probate of the Will in BC (probate is the process of getting the court to rule that the Will is legally valid).

“Spouse” under the Act includes same-sex and common law spouses who were living together in a marriage-like relationship for at least two years.

“Children” includes adopted children but excludes step-children.

If the court finds that the will maker died leaving a Will that does not make adequate provision for the proper maintenance and support of his or her spouse or children, the court has discretion to vary the Will to make the Will, in the court’s opinion, adequate, just, and equitable in the circumstances.

The policy behind the Act is that the will maker has a legal and a moral obligation to give fair consideration to his or her spouse and children when preparing a Will. While the “moral obligation” of the will maker is highly dependent on the facts, the courts look to whether the will maker was “acting in accordance with society’s reasonable expectations of what a judicious parent [and spouse] would do in the circumstance by reference to contemporary community standards.” (Clucas v. Royal Trust Corporation of Canada es qual, 1999 CanLII 5519, para.12).

It is important to understand that the law surrounding the Wills Variation Act makes it difficult to disinherit a spouse/child, and the will maker must have rational reasons for disproportionately distributing assets to his or her spouse/children.

Do you have sentimental or valuable ‘things’ you’d like someone special in your life to have? If so, you can designate specific items to the special someone as gifts under your will. It can be anything – your records or guitar collection, your engagement and wedding rings, your coveted high-performance sports equipments, your vintage car, the recipe book that’s been handed down for generations.

Alternatively, you might consider leaving a cash gift to a family member, a special friend, or a charity organization you have supported during your lifetime.

As hard as it is to think about what should go in your will, it’s an opportunity to think about the important people in your life and how they make your life special and meaningful.