Wills Variation Basics

What is a wills variation claim?  It’s a claim brought by the spouse or child of a deceased person alleging that the will-maker failed to make adequate provision for the proper maintenance and support of that spouse or child (Wills, Estates and Succession Act, section 60).

What is “proper maintenance and support”?  When it comes to spouses and minor children, a will-maker has to satisfy both a legal duty and a moral duty.  The courts are guided by family law principles, such as equal division of assets on divorce.  When it comes to adult children, a will-maker has no legal obligation, but only a moral obligation to provide for her children.

Wills variation claims arise in a number of situations.  A couple of the common ones are:

  1. Will-maker has children with spouse number 1.  Will-maker separates from spouse number 1 and marries spouse number 2.  Will-maker has children with spouse number 2 and leaves a will which favours their second family over their children from their first family.
  2. Will-maker has more than one child and leaves most, or all, of their estate to their favourite child and leaves a smaller share, or nothing at all, to their other child(ren).

What is the deadline to file a wills variation claim?  The claim must be filed within 180 days of the representation grant, or grant of probate of the Will.  This is a short timeline of only six months!

If you feel that you have been treated unfairly in your spouse’s or parent’s Will, please contact Jennie Milligan at jmilligan@beckrobinson.com.  She also represents defendants in wills variation litigation.

Please don’t rely on this blog post for legal advice!  Contact Beck, Robinson & Company for a consultation.



A Loan Between Friends

In the case of Rosas v. Toca 2018 BCCA 191, the Plaintiff won the lottery and gave her friend, the Defendant, a loan of $600,000.  The parties did not write down the terms of their agreement.  The trial judge found that the Defendant was to pay back the loan, without interest, in one year.  Every year for six years, the Defendant asked for more time to pay and the Plaintiff agreed to wait another year.  When the Plaintiff finally sued the Defendant, the Defendant argued that the Plaintiff’s claim could not proceed because the limitation period had passed.  The Plaintiff argued that the limitation period had been extended each time she agreed to wait another year.  The trial judge did not accept this argument because no new consideration had passed between the parties.

What is consideration?  It is something of value that parties exchange when a contract is made.  In the Rosas case, the Defendant promised to pay back the loan in exchange for the money advanced by the Plaintiff.  The Court of Appeal held that the loan was enforceable although it was interest-free.  This is not new law.

The Rosas case changes the law of contracts in BC because the law as it was would have provided an unfair result.  The problem before the Court is nicely summarized here:

So Hamilton (City) is recent appellate authority supporting the classic or orthodox legal anaysis of these types of cases: hard cases.  Harder still when we appreciate that unlike in many cases it is here the debtor who, having asked for, been granted and enjoyed years of forbearance by the creditor, raises her own failure to provide consideration for the benefit she has received to avoid her contractual obligation to repay the debt (para. 73).

The Court of Appeal decided to enforce the changes that the parties had made to the payment date even though no new consideration was exchanged.  Since the contract was modified annually until 2013, the running of the limitation period was delayed.  The Court found that the Plaintiff had started her court action in time and granted judgment in favour of the Plaintiff in the amount of $600,000.

Here is a concise statement of the new law:

When parties to a contract agree to vary its terms, the variation should be enforceable without fresh consideration, absent duress, unconscionability, or other public policy concerns, which would render an otherwise valid term unenforceable.  A variation supported by valid consideration may continue to be enforceable for that reason, but a lack of fresh consideration will no longer be determinative (para. 183).

If you need help collecting a debt, contact Jennie Milligan at jmilligan@beckrobinson.com.  She represents clients in both Provincial Court (for amounts under $35,000) and Supreme Court (for amounts over $35,000).

Please don’t rely on this blog post for legal advice!  Contact Beck, Robinson & Company for a consultation on your claim.


Injured in a Car Accident? Stick to One Primary Caregiver

A person injured in a motor vehicle accident must try, wherever possible, to have a single dedicated family physician who will be able to assess the injuries, assist with recovery and orchestrate whatever treatment is necessary to that end.

In addition, the importance of having a dedicated family physician (as opposed to 7 or 8 different caregivers from one or more clinics) is of significant importance owing to the fact that the principal tool for assessing the extent of injuries (and the value of the injury claim) is the medical legal opinion that your lawyer will request from the primary caregiver – which is typically the family physician.

That opinion is often impossible to obtain if the injured party seeks advice and treatment from a variety of caregivers. In those situations, it is often impossible to obtain a medical legal opinion, which means that it is often very difficult to assess the fair value of the injury claim.

If you do not have a dedicated family physician for an ICBC claim, it is sufficient to simply choose one primary caregiver from any clinic you have previously attended and to stick with that caregiver throughout the duration of your treatment and recovery from your motor vehicle accident related injuries.

If you have any questions, feel free to contact Daniel Harlos or Simon Murphy of Beck Robinson & Company who will be happy to assist you with any additional questions regarding your ICBC injury claim.