A wills variation is an opportunity for a spouse or child of a deceased individual to seek out changes to an existing will. Applying for a wills variation can be complex since the parties involved must prove the reason for such an application. The good news is that under British Columbia’s Wills, Estates, and Succession Act (WESA), there is legal recourse for individuals who realize they were wrongfully disinherited after their family member has passed on.
When Can You Apply for a Wills Variation?
Under WESA, an individual who is wrongfully disinherited may apply for this type of change in the will. The testator, or the individual who created the will and is now deceased, has a moral and legal obligation to provide for a spouse and children. If and when the court determines this did not occur, it will alter the will. This wills variation act moral obligation is somewhat left for the court to interpret in each situation.
The court must make the decision to alter the will carefully. The testator has the right and freedom to dispose of an estate as he or she wishes as long as the moral obligation of meeting the needs of the spouse and children are met. Each situation is unique. The court will ultimately decide where there is just support provided to the spouse and children or how much is considered just. Individuals who wish to apply for a WESA will variation should work closely with a lawyer to help them through this process.
Key considerations may include:
- The relationship between the spouse or child and the testator
- Any promises made
- Misconduct of the spouse or child
- The type of support given during an individual’s life
- The size of the estate
- The needs of the spouse or child
A variety of factors plays a role in this decision. A wills variation lawyer will work closely with you to determine if in fact there are grounds to pursue a change in the will.
Keep in mind there is a time limit to file such claims. In most cases, six months from the grant of probate of the will is the limit to apply for such changes. However, there are various exceptions to this that may apply. Only the spouse or the children of the deceased can apply for a will variation. The court defines a spouse as an unmarried individual who lived under common law with the individual also is an individual who can apply for a wills variation.
How to Apply for a WESA Will Variation
Disinherited spouses and children may apply for a WESA wills variation with evidence of a lack of support. The court’s duty is to make provisions to the will that are just and equitable. Application for this change occurs only when we can prove that the family member was disinherited in an unfair or unjust manner.
Though these variations used to take a long time and involve more elaborate trails, today adequate representation may help to avoid this. In many situations, these cases are settled through mediation. The court can decide the matter once it has reviewed the filed affidavits and make a decision in a summary trial as well.
Individuals who wish to apply for a wills variation in Vancouver should:
- Determine what evidence or information they have to make this type of claim.
- Work closely with a lawyer who is familiar with the WESA restrictions and limitations.
- File a formal complaint to the Court with the evidence provided.
- Provide a copy of the initiating petition to the executor of the will no later than 30 days after the 6 month period after the probation unless the court grants additional time.
- The Public Guardian and Trustee for all minor children of the will maker or any mentally incapable spouse or child must also be given a copy of the petition to the court.
What To Do Right Now
If you believe you have been disinherited or otherwise not given just and fair compensation under a deceased spouse or parent’s will, contact McLarty Wolf immediately. Legal representation in this type of matter may become essential in order to navigate the sometimes complex set of rules involved in this matter.
Experienced wills, trust, and estate lawyer can help you to determine if you have the right to apply for a wills variation and take the necessary steps to help you to do so. Contact our team today to discuss the opportunities available to you in this area. Call: 604-688-9542.
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