FAQs: Wills Variation Actions

Answers to frequently asked questions about wills and estates disputes and what you can do if you have been disinherited.

1. Is there a time limitation to apply to vary a Will?     

Yes, the application must be made within six months from the date of the grant of probate of the Will.  There may be exceptional circumstances where the limitation period does not apply. 

2. Who can apply to vary a Will?

The spouse or children of the deceased.  A spouse includes an unmarried person who has lived common law with the deceased for two years.  Children includes adopted children but not step children.

3. How does the Court determine how to vary a Will? 

The Judge will decide which claimants have legal claims and which have moral claims.  A surviving spouse or child under 19 has a legal claim on the estate.  These claims rank above a moral claim made by a self supporting adult child.

4. When can a parent disinherit children?

The Court will examine the parent’s reasons for not providing for a child.  If the reasons are valid and rational, then the Court may uphold the will.  “Valid” means true in fact.  For example, where a deceased says that he is disinheriting a child because the child has stolen from him, but the Court is satisfied that this is not true, the reasons would not be valid and the Court would provide for the child.  “Rational” means that there is a logical connection between the valid reasons and the act of disinheritance.  For example, a deceased can not cut a child out of his will because of the child’s sexual orientation.  Ultimately the court will decide whether the deceased acted as a judicious parent would in these circumstances.

5. What if the financial circumstances of a child change between the date of the Will and the date of the death of the parent?

The Court can look at the circumstances of the child at the date the will comes into effect (the date of the death of the parent).  If the child’s finances or health has changed dramatically since the will was written, the child may have a successful claim.

6. If the deceased held property in joint tenancy, will it go to the other joint tenant or will it be part of the estate?

Generally, the property passes to the surviving joint tenant.  However, there are situations where the Court finds that the property is being held in trust for the estate.  This could happen if the surviving joint tenant did not pay for his share of the property and if the deceased wanted the property held in trust for the estate.

7. Can a person contract out of the provisions of the Wills Variation Act?

No, an agreement not to apply to vary a will is likely not enforceable.  However, the agreement may persuade a Judge not to vary the will if the parties received independent legal advice and the agreement was fair.

8. What happens if a claimant under the Wills Variation Act dies before his claim is completed?

The personal representative of the claimant can continue the claim until its resolution.

9. Do these cases often involve long, expensive trials?

In recent years, there has been a trend to deal with these cases through mediations and summary trial procedures where the Court decides the matter after reviewing affidavits. 

10. Can I apply to vary the designation of a beneficiary under a life insurance policy, RRSP or a pension plan?

No, these assets do not pass into the estate if a beneficiary has been designated.

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