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.



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