The Wills Variation Act means your Will may not, in fact, be the last word. Vancouver siblings found their share of their inheritance reduced after their late father’s second wife challenged will.
A recent Wills Variation case has opened the door wider for challenging Wills. The Wills Variation Act allows family members of the deceased to apply to the court to have a Will changed.The Reasons for Judgement were released in late May 2015.
R. Mc, an 85 year old Vancouver woman, was compelled to challenge her late husband’s will because it did not properly provide for her. She brought a summary trial application forward under the Wills Variation Act. The Wills Variation Act was incorporated into the Wills, Estates and Succession Act (WESA) in 2011.
Mr. and Mrs.Mc had lived together for 38 years. They were married for 25 of those years. However, Mr. Mc left most of his estate to his two adult children from his first marriage.
In his Will, Mr. Mc left his wife only $30,000 and benefits from his Registered Retirement Income Fund. The remainder of the estate was supposed to be divided between his two children from his first marriage- W. Mc and C.A.
The value of Mr. Mc’s estate included the family home valued at approximately $675,000 as well as another $175,000 in cash and assets.
Complicating matters was the fact that, prior to their marriage, Mrs. Mc and her husband signed a marriage agreement. However, that marriage agreement did not allow for spousal support in the event of separation or divorce.
In her Reasons for Judgement, the Honourable Madam Justice Harris found that:
“She [Mrs. Mc] had very limited financial means. In these circumstances and given the length of the marriage and the testator’s greater financial means, I conclude the plaintiff would have been entitled to spousal support had the parties separated or divorced.”
A Testator is a person who has written a “last will and testament” that comes into effect at the time of their death.
Additional factors considered by the Judge were:
- the long duration of the marriage.
- there were no periods of marital separation.
- the family home was acquired after the couple had been together for 8 years.
- the deceased did not want his wife to work, and she was therefore not able to improve her financial standing during the marriage.
- the widow had few assets, little income or education and was financially vulnerable.
- the marriage agreement did not reflect the fact that marriage is a joint endeavour.
As a result, the Judge considered that “there would have been a reapportionment to provide her with an interest in the matrimonial home.”
The Judge was required to balance the legal and moral duty of following the deceased’s expressed wishes with the requirement to provide support and maintenance for his widow.
The expressed bequest of roughly $30,000 did not provide adequate support for Mrs. Mc’s supported housing (retirement home).
Upon weighing all of the evidence, the Judge awarded Mrs. Mc a 50% interest in the net proceeds of sale for the couple’s matrimonial home. Moreover, she was provided an immediate lump sum payment of $165,000 from the estate. This was intended to assist her with nursing home costs.
Mr. Mc’s two children were provided equal shares of the remainder of the estate.
While Wills variations remain rare, they are increasing in frequency. Over the next 20 years, Canada will have the largest transfer of assets in history. As these estates grow, so does the likelihood of conflict. Lawyer Michael Butterfield advised, in a previous blog post, Don’t Die Without A Will, “It is particularly important that you update your will if you enter into a marriage like relationship, have children, or get separated or divorced.”
“We are seeing a lot more challenged will before the court. They can be very expensive for families and lead to a lot of conflict” said Butterfield. “The best defence is a properly drafted will.
Mediation is often seen as the best way to resolve these challenged Will cases.
Jayne Embree, M.A.
Jayne holds a Masters in Psychology and is a highly experienced Divorce Coach and Child Specialist. She is currently working with the Administrative and Human Resources Departments of Butterfield Law.