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Vancouver BC WESA Estate Disputes lawyers handle claims by spouses and children and others who feel they have been left out of or received too little from a deceased loved one’s estate. In cases involving Vancouver BC WESA Estate Disputes the court looks at the Will and measures its proposed distribution against the moral and legal obligations of the Willmaker.

But what happens when children and spouses disagree over what each should have received under the deceased loved one’s Will. In today’s blog, we explore competing claims between parents and children against a deceased loved one’s estate when a valid Will has been prepared.

Vancouver BC WESA Estate Disputes – Call 1 877 602 9900

Under WESA, a child or spouse of the deceased may seek a redistribution of the will-maker’s estate if it can be established that adequate provision has not been made for the proper maintenance and support of the claimant. Call our Vancouver BC WESA Estate Disputes lawyers early on in an estate dispute as strict deadlines apply. Click here to book an appointment.

Claims Made Against an Estate in British Columbia

If the will does not make adequate provision for the proper maintenance and support of a spouse or a child, the court may order whatever it thinks to be “adequate, just and equitable.” It has been stated in a recent decision of the British Columbia Court of Appeal in Gibbsons v. Livingston, 2018 BCCA 443 that in determining what is “adequate, just and equitable”, two societal norms must be considered in the following order of significance:

  • First, the legal obligations of the will-maker to his or her spouse and children; and
  • Second, the moral obligations of the will-maker to his or her spouse and children.

Legal obligations are obligations that are enforced by a court of law, and moral obligations are society’s reasonable expectations of what a judicious person would do in certain situations.

Spouses, children under the age of 19 and disabled children of any age who have not received adequate provision under a will have the strongest claims to vary the will because of the “legal obligation” of the will-maker to maintain and support his or her dependents.

Common Law Spouse 

In Lamoureaux v. Kalyk, 2009 BCSC 584, the deceased was survived by a common-law wife of 10 years and three adult daughters from a previous relationship. The deceased had previously transferred shares of a real estate development company into a family trust for his daughters. His will provided his spouse with $50,000 and a right to occupy the family home for 10 years, with the remainder divided equally among his adult daughters.

The court considered the competing legal and moral claims of the spouse and the deceased’s adult daughters and found that the deceased’s legal obligation was limited to spousal support, which would be satisfied by the $50,000 left to her in the will. The court found that the deceased had a moral obligation to his spouse as he created a reasonable expectation in his spouse that she would be provided for under his estate and in fact he had intended to increase the bequest. The value of the deceased’s estate was $480,000 and the court varied the will to provide the spouse with $220,000.

The deceased had no legal obligation to his daughters as they were over the age of 19 and they were well-off. The court also found that the deceased’s moral obligations to his daughter were met by the family trust he set up for his daughters.

Spouse Against Children

In the British Columbia Supreme Court decision of Viberg v. Viberg, 2009 BCSC 27, the deceased was survived by his long-term wife (from whom he had been separated for three years) and their three children aged in their 20’s. His 1979 will left everything to his wife. While they had agreed upon a division of their family property, they had not yet agreed about support or a separation agreement. The estate was valued at $317,000. The wife had assets of her own of $256,000 and had already received $382,500 under beneficiary designations plus the survivor’s pension under the Canada Pension Plan. The children had modest finances. Two of the children applied to vary the will, they claimed $100,000 each.

The Court found that the deceased did not meet his moral obligation to the children. As a guide to their moral entitlements, the court determined what the children would have each received under the intestacy provisions of s.85 of the Estate Administration Act ($50,000 each).

  • Relevant Date for Determining Adequacy of Support

The adequacy of the will-maker’s support for his or her spouse or children is determined based on the circumstances of the Plaintiff at the date of the will-maker’s death, including any reasonably foreseeable changes in the circumstances of the spouse or children as at the date of death of the will-maker.

  • Certain Circumstances May Preclude WESA Relief

The court has the discretion to refuse relief under WESA. Section 63 provides that the court may:

  • attach to an order under this Division any conditions that it thinks appropriate, or
  • refuse to make an order in favour of a person whose character or conduct, in the court’s opinion, disentitles the person to the benefit of an order under this

Character or conduct” refers to the character and conduct of the claiming beneficiary before the will-maker’s death.

If You Have A Vancouver BC WESA Estate Dispute – Call 1 877 602 9900