What is a 'Will Variation'

Will Variation permits a decedent’s surviving spouse or children to contest a will, particularly under Canadian law, in cases where the will does not provide them adequate support.

BREAKING DOWN 'Will Variation'

Will Variation is a provision under Canadian estate law which may be used to contest the will of a deceased person by the surviving spouse or children in case the will does not provide them adequate support.

Under Canadian law, a legally married spouse, separated spouse, a common law spouse and the children of a decedent have the right to contest a will if they feel they have not been provided for in the manner in which they had reasonably expected. If the challenge is upheld by a court, the will may be rewritten to provide adequate support for the involved parties.

Specifically, the British Columbia Wills Variation Act allows a disinherited spouse or child to  challenging the will of a decedent and seek redistribution of the estate’s assets. In the event that a spouse or child contests a will due to lack of support, a court must decide if the challenge is valid and if a revision to the will is appropriate. The court can direct a redistribution of the estate that is adequate, just and equitable in the circumstances.

When a Will Variation is heard, the court will first consider legal obligations of the testator to their spouse and children, and then the moral obligations to them. A court may decide against the plaintiff spouse or children in cases where a disinheritance may be determined to be valid and rational, however a court may weigh in favor of the variation in cases of disability, dependency or other such valid claims.

The Historical Background of Will Variations

Notions of testamentary autonomy began to emerge in the 18th and 19th century, as more property began to be considered as belonging to individuals. The roots of Canadian estate law, as with most such law in the English-speaking world, are in English common law. Throughout much of Western legal history, most real property belonging to ordinary people was considered family property, and remained with blood relatives after death. Particularly in the cases where heirs of wealthy families married, a part of the marriage contract often included arrangements for property distributions at the time of death of relevant family members.

Increasingly, English common law began to address the willful distribution of individual property as individuals began to accumulate property that was not covered by marriage contracts, and ultimately English common law determined that a property owner was free to determine who should inherit their property in the event of death. While law was developed which did not require a property owner to leave property to their blood relatives, many regions have enacted statutes such as the British Columbia Wills Variation Act, allowing spouses and children the capacity to contest a will they feel does not offer adequate provisions, and to alter that will when the courts side with them.

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