One of the most important reasons to have a will is to lay out what you want to happen to your estate when you pass away. A will allows you to divide your estate in a matter you see fit. However, having a will in place does not mean it won’t be challenged once people discover what is in it, and indeed, will challenges are common in estate litigation The Supreme Court of British Columbia recently heard a case where the second wife (“wife”) of a man sought variation of his will, which specified that nothing be left to his wife.

34 Years of Marriage

The husband and wife had been married for 34 years when he passed away in September 2013. It was the second marriage for both parties. The wife had two children from her previous marriage while the husband had four. His will, which was drafted in September, 2003, specified that his estate was to be divided equally amongst his four children, with additional gifts of $20,000 to be given to each of his daughters. In addition, the will stated “I have not provided for my (wife) in my Will because during my lifetime I caused to be transferred to my wife title to 50% of the property located at 22674 132nd Avenue, Maple Ridge, British Columbia and legally described as PID 008-852-243 Lot 14 Section 29 Township 12 New Westminster District Plan 25759 without any contribution from her to the acquisition or preservation of that property.” The wife’s position before the court was that a variation of the will was justified based on her legal and moral claims arising from their 34-year relationship as well as a promise made by the deceased to her. She sought $375,000, about half the value of the estate. The defendants were the four children of the husband. They claimed their father had adequately provided for his wife before his death and that any variation of the will would be unfair to them.

Turning to the Wills Variation Act

Prior to 2014, variations to wills in British Columbia were governed by the Wills Variation Act (the Act). While the Act is no longer law, it was at the time that the will was drafted and at the time the husband died, and as such, applied in this case. Section 2 of the Act stated “Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may, in its discretion, in an action 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 testator’s estate for the spouse or children.” The court had to determine if it felt such adequate provisions had been made to the wife. If the court determined that adequate provisions were not made, the court would have to determine what would be adequate, just and equitable in the circumstances.

Determining What Would Be Fair

The court looked at the length of the couple’s marriage. They had been together for 34 years and married for 32. The wife stayed with the husband despite the fact that he was convicted of abusing her. She remained with him and cared for him to the best of her abilities up until his death. In determining what would constitute adequate provisions, the court said “In weighing the totality of the evidence in light of the legal principles, I conclude that (the husband) failed to discharge his legal and moral duty to his wife when he provided her with nothing under his Will. The testamentary autonomy of (the husband) must yield to this. These claims support that an ‘adequate, just and equitable’ provision for her requires that she receive 30% of the residue of the estate. The remaining 70% will be equally distributed between the defendants. Given the circumstances of the joint bank account and the additional sums provided to the defendants, along with this residue, Mr. Unger’s moral duties to his adult children are satisfied.” Having a will is an important part of estate planning, and is an important step in protecting the well-being and financial security of your heirs in the event of your death. At NULaw, our lawyers will help you draft a will with the aim of securing your interests while minimizing conflict amongst your heirs and beneficiaries. We can also re-draft existing wills and offer free basic reviews of wills drafted by our lawyers for years to come. We also offer safe and secure storage of your will for no additional charge.

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