Varying a Will – What Does the Court Look At?

When deciding whether to vary a Will, Courts must consider whether the Will makes adequate provision for children and spouses of the deceased, and if not, order what is adequate, just and equitable. The phrase “adequate, just and equitable” should be viewed in light of “current societal norms” (Tataryn v Tataryn Estate, [1994] 2 SCR 807). In this case, the Court further provided that two types of norms are available, legal and moral obligations. Legal obligations are those which the law would impose on a person during his or her lifetime and moral obligations are the reasonable expectations of society based on contemporary community standards.

Legal obligations during one’s lifetime would be things like supporting a spouse /minors /or disabled children. A legal obligation may be dependent on factors including the length of a marriage and number of children. Moral obligations are harder to judge and more subjective. It will often depend on the size of the estate, and how many dependents are involved, and whether there was hostility and disaffection during the will-maker’s lifetime with any potential claimants. Certainly arguably, the moral claim of adult independent, self-sufficient children may seem weak, however, there is a lot of case law suggesting that, if the size of the estate permits some provision for such children should be made.

In Tataryn v Tataryn Estate, the Court concluded by stating that as long as the will-marker has made a Will in accordance with an acceptable range, the Court should not disturb a Will.

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information real estate matters or estate planning, and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or [email protected]  Vanessa practices in the area of Real Estate and Wills & Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you!

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