I have come across a number of Wills Variation Act claims in which the plaintiff has not named all of the proper parties as defendants in the lawsuit.
The proper parties to a Wills Variation Act suit are as set out in Rule 21-6 (2) of the Supreme Court Civil Rules:
PartiesIn a few cases, I have seen the plaintiff name only the executor. More frequently, I have seen the plaintiff name the executor and the beneficiaries, but not a spouse or child who has also been excluded from the will.
(2) In a proceeding referred to in subrule (1),
(a) the following persons must be parties to the proceeding:
(i) the surviving spouse and children of the testator;
(ii) all beneficiaries under the testator's will whose interest may be affected by the order sought;
(iii) the executor of the will, and
(b) the court may order that any other person be joined as a party.
The reason it is important to name all of the beneficiaries in a Wills Variation Act claim is that it is the beneficiaries rather than the executor who has an interest in defending against the claim. The executor is supposed to remain neutral in a Wills Variation Act lawsuit.
A spouse or children who have been excluded also have an interest in the lawsuit, because they may advance their own Wills Variation Act claims in the suit. Once one person has brought a Wills Variation Act claim, it has been brought for all persons who are entitled to make a under the Wills Variation Act.