Estate Planning: Wills Variation – Is It Right to Change a Will?

You live your entire life working and accumulating wealth, and are able to do whatever you like with it during your lifetime – spend, invest it, grow it, preserve it or give it away.

As long as you have mental capacity, no one can challenge those decisions. Depending on where you live in Canada however, your final instructions regarding your property, your testamentary dispositions, will not necessarily be followed. It begs an important question: should the courts be able to question your final instructions and change them? 

The common law has long supported the notion of testamentary autonomy: the ability to dispose of your estate through your final testamentary document (usually a will) in whatever manner you choose, especially when it comes to cases of dependent children. It has been held, largely without objection, that there is a legal duty to provide for family members who are not independent because of age or disability.

Most provinces in Canada support a high degree of testamentary autonomy. Only dependants can apply to have a will varied that they feel is inequitable. In BC however, there is much less respect for testamentary dispositions; non-dependent, adult children and spouses may challenge a will if it is objectively unfair, regardless of their age or dependency, and judges may essentially redistribute the estate in a fashion that he or she deems fair in the circumstances. 

As this legislation has been applied in the courts, it only affects testators “domiciled” in BC and it only affects gifts that form the testator’s estate (so not pension benefits payable to a third party beneficiary or insurance to a specific beneficiary, although these can be taken into account when determining a fair distribution of the actual estate).

In BC there is a moral duty to provide for children equitably. If there are significant reasons such as sexual or religious orientation, among others, the court may alter the provisions of a will and distribute the estate according to what it deems to be fair in the circumstances.

In Clucas v. Clucas Estate, a 1999 decision from the BC Supreme Court, Justice Satanove described the duty of a testator in BC as an objective test as to whether he or she was “acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards.”

New Zealand actually began the trend for Commonwealth Jurisdictions by enacting a “wills variation” statute in 1900. BC has had wills variation act legislation since 1920. Only a spouse or child of the testator may bring a challenge. The case law interprets children to include adopted children but not step children. 

Debate continues throughout the Commonwealth on the issue of testamentary autonomy. The fact that you are able to dispose of your property in any way you choose throughout your life, but that the courts will question your final instruction seems difficult to reconcile.

What do you think? Should the courts be able to vary an “unfair” will, even if the potential beneficiaries are independent? Should the views of societies be a more important consideration than the person actually disposing of the property? Let us know on our Facebook page!

Greer M. Jacks was called to the Bar of the Province of British Columbia on November 23, 2013. As a practicing lawyer in the city of Victoria under the age of 30, Greer has a unique perspective of wealth preservation and estate planning in his professional and social milieu.

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Research source:

The BC Wills Variation Act – The Basics, November 19, 2013, by Trevor Todd.