Wills Variation under the new Act

The new Wills, Estates and Succession Act is now law in B.C. An extensive piece of legislation, it is changing a lot of very old law and prompting the repeal of several Acts.

The Wills Variation Act is among the legislation being repealed, and the new legislation incorporates its provisions (in Part 4, Division 6).

The concepts are, for the most part, the same. Spouses and children remain eligible to seek variation of a Will, and must launch their legal action within 180 days after the issue of a grant (in the new Act, it is called an Estate grant).

I expect that this area of Wills and Estates law will keep evolving under the new Act in a quite similar way to that under the previous legislation.

In that regard, reasons for judgement were released recently in a rather interesting Wills Variation case called Houston v. Fowler. Let’s take a look.

Facts
The Plaintiffs are four children of their deceased father (from his first marriage), who died in 2009. The deceased’s second wife survived him but died in 2013, well before the Trial.

The second wife had two children of her own, one of whom was the defendant, and was named Executrix under the Wills of both the deceased and his now-late wife.

The couple made “mirror” Wills, where each left their assets to the other, and when both died the Estate would be distributed in equal shares to the deceased’s children and the late wife’s children.

Before the deceased (who had been a doctor) died, one of his sons, acting under a Power of Attorney and concerned that the wife’s daughter had been interfering in the couple’s financial affairs, severed the existing joint tenancy in the matrimonial home, changing it from a joint tenancy to a tenancy in common.

That act created an Estate for the deceased, where he would otherwise not have had one (a jointly owned asset passes not through an Estate but rather through the right of survivorship).

The deceased died first and, pursuant to his Will, his assets (including his interest in their home) passed through his Estate to the wife. However, since he did die with an Estate, his children could launch this action.

Meanwhile, in May 2009 (after the deceased died), the wife made a new Will. She left most of her Estate to the defendant, her daughter. None of the deceased’s four children were in need. They were all financially independent of their father.

Court’s decision 
The Court noted that, in the year before his death, the deceased and his Wife made some minor changes to their mirror Wills, but chose not to enter an Agreement that would have prevented the surviving spouse from changing their Will.

That left open the possibility that, depending on who died first, one set of children might not ultimately receive any part of the Estate. And the wife did change her Will after the deceased died – so if not for the severance of the joint tenancy, the deceased’s four children would not have received any part of the Estate.

The Court first examined the claim of the surviving wife, and what legal duties the deceased owed her in his Will. They were met, and so the Court examined the moral duties owed to the surviving wife.

Here, the Court was entitled to consider that she had passed by the time of Trial. However, the Court still examined her moral entitlement since she had survived the deceased.

The Court held that the size of the deceased’s Estate (about $375,000) was adequate to meet the moral obligations he owed his wife and children. The Court divided his Estate such that his surviving wife received a little more than half, with the remainder going to the deceased’s four children.

Summary
I expect that in some cases in the future, under the new legislation, Courts might be invited to hear evidence of the Will Maker’s intentions over and above what their Will expresses. That is, there may be some situations where, as in this case, a Will clearly existed, but after it was made, the Will Maker asked a child to investigate changing title to an asset (here, it was the condominium).

It remains to be seen, but in this particular case, it was the act of a child in changing the title that created an Estate for the deceased, and gave the children portions of a moderate sized Estate.The Court did not find the changing of the title (from a joint tenancy to a tenancy in common) inappropriate. And the Estate of the surviving wife, although she passed before Trial, was still awarded a more than half the Estate.

In my view, the result is in tune with the law, though it may seem unusual. The case does suggest that the couple probably should have made Mutual Wills Agreements (to prevent a change of the Will by the surviving spouse), and illustrates the difficulties and complexities of Estate planning in subsequent marriages.

Couples in subsequent relationships especially need advice in their Estate planning.

This column ran in the Richmond Review on April 2, 2014.