What Types Of Assets Do Courts Consider In Deciding Wills Variation Claims?

In British Columbia, courts have the ability to change a deceased's will, if the court rules that the will fails to make "adequate provision" for a surviving spouse or child of the deceased. This noteworthy judicial power, conferred upon courts by the Wills, Estates and Succession Act (the "WESA"), makes the courts' determination of what constitutes "adequate provision" extremely important.

In measuring "adequate provision", and determining whether a deceased's will has made "adequate provision" for a surviving spouse or child, courts consider a multitude of contextual factors, including assets of the deceased that were gifted to relatives by mechanisms outside of the will.

What is "Adequate Provision"?

The Supreme Court of Canada, in the seminal case of Tataryn v. Tataryn1, ruled that calculating "adequate provision" involves weighing the legal and moral 'duties' owed by the deceased to their surviving spouse or child. The court in Tataryn further ruled that, in every case, there will be a wide spectrum of "adequate" or acceptable options available to a will-maker in distributing his or her estate.

In wills variation lawsuits, where a claiming spouse or child seeks to vary the deceased's will, the court has wide discretion when determining whether a deceased will-maker has made "adequate provision", or whether the deceased's will fails to satisfy the duties owed to surviving relatives and ought to be varied on that basis. Ultimately, the decision of what constitutes "adequate provision" is left to the discretion of the judge, who will analyze the various gifts made by the deceased (both during the deceased's lifetime and upon death) and determine whether a judicious will-maker in identical circumstances would have disposed of his or her estate in a similar manner.

Assets Passing Outside of Estate

Courts consider a diverse slew of factors in determining whether a deceased's will adequately provides for a claiming relative: ranging from the particular needs and expectations of the claimant, to the nature of the relationship between the claimant and the deceased. One factor which courts will regularly consider is the value of the deceased's assets that were gifted to the claiming relative outside of the deceased's estate by mechanisms independent of the will.

A deceased's will distributes assets personally owned by the deceased at the time of his or her death, these assets are said to pass through the deceased's estate. A deceased may have...