Many people think that they have complete autonomy over how their assets are distributed when they die. The widely held belief is that if you have a Will that sets out how you wish to deal with your assets, that’s the end of the story. In British Columbia, the law is not quite that simple. Unlike other provinces, when a will-maker does not adequately provide for their family, the Supreme Court has the power to vary how assets are distributed when a person dies. Recently, in the decision of Lam v Law Estate, 2024 BCSC 156, the BC Supreme Court exercised that power to redistribute the assets of a will-maker who distributed her estate unevenly among her children.
Wills Variations
British Columbia has a unique approach to the finality of Wills regarding a fair distribution of assets. The province’s Wills, Estates, and Succession Act (WESA) gives the British Columbia Supreme Court significant power to vary a Will if it doesn’t provide adequately for the maintenance and support of the will-maker’s spouse and children. Where these family members of the will-maker challenge the adequacy of the estate distribution, the court can intervene and modify the Will if it finds doing so to be just and fair.
Determining what qualifies as “proper maintenance and support” isn’t a simple question. The phrase and its meaning are complicated issues that have been debated in many court cases over the years, and what one person considers “proper” may not align with the Court’s view. However, the Court’s authority in Will variation cases is broad, and it will evaluate evidence and testimony to attempt to understand why the will-maker decided to distribute their assets the way they did.
Will variation claims can be brought to court by a spouse or any of the deceased’s children, including both biological and adoptive children, not just children who were financially dependent on the will-maker. This means that even estranged children can bring a will variation claim if their parent decides to disinherit them. Stepchildren and grandchildren are not entitled to apply. However, pursuing these claims is both expensive and complex. When an estate has to defend against a Will variation claim, the legal costs can quickly add up, reducing the assets available for distribution and diminishing the inheritance for the beneficiaries.
Lam v Law Estate, 2024 BCSC 1561
In Lam v Law Estate, the Supreme Court of British Columbia intervened to modify a Will, addressing what it identified as gender-based discrimination in the division of an estate. The dispute was related to a daughter’s Will variation claim against her mother’s estate. After their mother’s death in February 2021, the daughter sought to change the Will under Section 60 of WESA. She argued that her brother had received over $2.9 million in assets, or 82.6% of the estate, while she was left with just the equivalent of $170,000. According to the daughter, this imbalance was not merely unfair but rooted in her mother’s gendered preference for sons, which was shaped by traditional Chinese cultural values.
Although acknowledging that he received a larger share, the brother denied any bias. He argued that his bigger inheritance reflected his role in managing their mother’s rental properties and finances, not gender-based favouritism. The Will originally granted the son half of a Vancouver rental property and the family home while the daughter received the other half of the rental property. The mother’s Will offered some justification for the unequal division by claiming the daughter had already received gifts during their mother’s lifetime.
After reviewing the evidence and hearing testimony, the Court found that, even with the most favourable calculation, the daughter’s gifts and estate assets were worth around $459,222 compared to the $2.24 million in value the son had been granted in the Will. In her decision, the judge acknowledged the mother’s deep love for both children but determined that she had favoured her son because of his gender, believing sons were entitled to the larger portion of a parent’s estate. The judge also found that gender bias influenced the gifts the mother gave to her children during their lifetime.
In the end, the judge ruled that it was fair and just to vary the Will to create a more equitable distribution between the children. Despite the judge determining that gender bias played a role in the distribution, she was mindful in her redistribution. She determined that the best way to fairly distribute the estate assets while respecting the mother’s wishes was to increase the daughter’s ownership interest in the Vancouver rental building from 50% to 85%.
Wills Variation and Your Estate Planning
A Will variation action can pose a serious threat to the wishes of a will-maker. Fortunately, there are methods of mindful estate planning that can be used to minimize the risks of a variation claim, ensure a will-maker’s wishes are respected and reduce the risk of unnecessary financial hardship for an estate and its beneficiaries. The death of a loved one is already an emotional time for any family, and a Will variation claim can add further complications and stress to an already difficult situation.
Estate planning goes beyond simply deciding who gets what; it involves anticipating potential disputes and taking steps to avoid them. A well-prepared estate plan should consider possible challenges and ensure that the intended beneficiaries receive what was meant for them. Trusts are some of the tools which are useful for this purpose. Taking the time to plan carefully is crucial to protect and maintain the legacy you want to leave behind.
If you would like to learn more about preparing a Will that both respects your wishes and minimizes the risks of potential Will-variation claims, reach out to Kyle Ramsey at [email protected] or give him a call at 250.869.1259.
