B.C. Law Institute's Proposed Changes to the Wills Variation Act

As I wrote here, the British Columbia Law Institute published a comprehensive report on succession law reform, entitled Wills, Estates and Succession: A Modern Legal Framework, in June 2006. The report recommends repeal of the Wills Variation Act, RSBC 1996, c. 490, and its replacement with a Part 5, Dependant’s Relief, in a new Wills, Estates and Succession Act.

The Succession Law Reform Project Committee's proposals include the following changes:

1. Restricting claimants to spouses (the definition in the proposed legislation includes two persons who lived and cohabitated with each other in a marriage-like relationship for at least two years), minor children, adult children who are students under 25, and adult children who are not self-supporting and are unlikely to become self-supporting by reason of “illness,” “mental or physical disability,” or “other special circumstances….” Independent adult children would no longer be able to make an application.

2. Allowing minor stepchildren to whom the deceased “had contributed support and maintenance for at least one year immediately before his or her death...” to make a claim.

3. Eliminating the right of a spearated spouse from making a claim, if the spouse and the deceased had been separated for more than two years and one or both of them intended "to live separate and apart from each other permanently."

4. Enforcing waivers of dependants’ relief claims.

5. Extending the ambit of the legislation to include intestate estates (where the deceased did not have a will), and partial intestacies (where the will did not dispose of all of the estate).

6. Restricting the type and extent of relief that is available to children and stepchildren. The proposed legislation provides for periodic payments or a lump sum equivalent to children and stepchildren. It expressly provides that the court may not consider whether the will provides a “fair share” of the estate to the child, nor the parent’s moral obligations to the child.

7. Giving the court power to make orders in respect of “transactions” conferring a benefit on others, if the deceased’s purpose in making the transaction is to defeat the rights of a dependants' relief claimant. Such “transactions” are voidable as against a claimant.

I will be analyzing some of the proposed changes to the Wills Variation Act in more detail in future posts. To foreshadow my comments, overall, were I a famous movie critic—or a Roman in the days of the gladiators—I would have to give the proposed changes to the Wills Variation Act a thumb down.