Wills Variation Claims
Wills Variation
Legal Test
The wills variation test and remedy to be applied by BC estate lawyers is whether a will, “does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will maker’s estate for the spouse or children.”
There are any number of circumstances or reasons why a will maker may not make adequate provision for his spouse or children. They may be rational or irrational, the fault of the will maker or the spouse or child, active or long dormant.
Pictured above is a dormant volcano near Whistler named Mount Garibaldi after Giuseppe Garibaldi who is credited as the general and revolutionary who helped found the Kingdom of Italy. He was a larger-than-life personality with military success in South America and Italy. It is rumoured that he fell in love with his wife after seeing her through a telescope. And for a period of time, society ladies in Europe wore red blouses in his honour.
BC courts look at legal and moral norms in assessing whether adequate provision was made, and if not, using those same norms to assess what is adequate, just and equitable. For example, the courts will look at what a spouse would have received had the parties separated as it did in our 2016 decision Brown v. Terins, 2016 BCSC 42; or rank the moral claims of children as in our 2010 decision McBride v. Voth, 2010 BCSC 443.
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