Dependents relief legislation exists in some shape or form across most of Canada’s provinces and territories, but (for better or worse) the most robust and expansive rules can be found in BC.

The Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), empowers the BC Supreme Court to modify a will in situations where a will-maker died leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children.

The definition of ‘spouse’ includes both married persons and persons who had lived with each other in a marriage-like relationship for at least two years prior to the will-maker’s death. The term ‘children’ is not a defined term in WESA. Generally speaking, it includes biological and adopted children, but not an un-adopted stepchild, a biological child of a will-maker who has been adopted by a third party, or a grandchild.

For a will variation action to proceed, the first requirement is that a valid will exists. If so, the court will only be able to make an order in respect of the portion of the estate effectively disposed of by will (but in so doing, the court may consider the net value of all property passing on death and gifts given by the will-maker while alive, in determining the amount of the provision to be made).

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This article is intended for information purposes only and should not be taken as the provision of legal advice. Grace C. Cleveland is a lawyer with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or grace@clevelanddoan.com.