Wills Variation Act Violates Charter

In January the B.C. Supreme Court ruled that B.C.’s Wills Variation Act violates the Charter of Rights. 

The Act permits a testator’s wife, husband or child to apply to the court to vary the will (a testator is someone who makes a will). If the court agrees that the will does not adequately provide for the testator’s wife, husband or child, the court may vary the will to provide for that person.

Because the Act does not give the same rights to a person who was in a “marriage-like” relationship with the testator, the court ruled that the Act violated the right to equality under the Charter of Rights. The court’s remedy was to “read into” the Act the extended definition of spouse contained in the (not yet in force)Definition of Spouse Amendment Act, 1999.

That Act defines spouse to include a common law spouse. A common law spouse is defined as a person who has lived with another person in a marriage-like relationship for at least two years immediately before the other person’s death. It specifically includes a person in a marriage-like relationship with another person of the same sex. As a result of this decision, many more wills are open to challenge under the Wills Variation Act. If you are concerned about your will being challenged, please call us to review the strategies that are available to avoid these claims.

PLEASE NOTE: The definition of spouse has since been amended- click here for more information: New Definition of Spouse May Affect Your Estate Planning.