Wednesday, 11 April 2012

Let's vary the Wills Variation Act

Awhile ago I posted several pieces on options and approaches to justice system reform that focus on process and structural changes.  Another way to alleviate some of the stress on the justice system is to reform laws which bring disputes to court that ought not to be there.  A good example of such a law is the Wills Variation Act, a legislative anomaly if ever there was one.
The Wills Variation Act (or WVA), as its name suggests, gives the court the power to rewrite your will.  If, in the court’s opinion, the will does not make “adequate provision for the proper maintenance and support of the testator’s spouse or children”, the court may, in its discretion, “order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the spouse or children.”
Put more plainly, after you are dead, if one of your children or your spouse believes that you did not leave enough for them in your will, they may apply to court to ask for more.
As you can imagine, there have been lots of cases under this statute over the years (it was first enacted in 1920 as the Testator’s Family Maintenance Act), and the courts have developed tests for the circumstances in which it will exercise this power.  But the underlying question is whether this statute represents an unreasonable infringement of testamentary freedom.  Or to put it another way, why can’t you bequeath your property to anyone you want to?  After all, it’s your property.  Why should the state - through the courts - have the power to override your wishes?
One of the absurdities created by the WVA is this: a day before your death you can give all of your property away to anyone you like.  If you are angry that your children have not come to visit often enough, or, heaven forbid, you disagree with their politics, you can gather all of your worldly goods, and give them away on a street corner to anyone passing by.  Provided you are of otherwise sound mind, no court could stop you.
But once you have died, then even if you have asked the executor of your will to do the same thing, your spouse or children can contest the will, and invite the court to redistribute your property to them, even though it was your fervent desire that none of them get anything.
This is, as one of the WVA’s detractors once said, “a diluted and whimsical form of forced heirship.”

(Leopold Amighetti, The Law of Dependant’s Relief in British Columbia (Calgary: Thompson Professional Publishing, 1991) at 28, cited in Wills, Estates and Succession: A Modern Legal Framework, A report prepared for the British Columbia Law Institute by the Members of the Succession Law Reform Project, BCLI Report No. 45, June 2006)
The original principle underlying the WVA was to ensure that dependent spouses and children are not left destitute.  This principle has a great deal to commend it, whenever destitution would be the result of disinheritance.  Take, for example, the case of a child who, by reason of disability, is unable to support himself.  Rather than force him to claim social assistance, the statute gives him a right to ensure that he is provided for from his late parent’s assets.  The WVA thereby reduces the burden on the state of providing for those whose parents have the means to support them. 
That principle, however, has no application to an adult child perfectly capable of supporting himself.  
Different considerations may come into play for surviving spouses, given the general rule that family assets are equally owned by both spouses.  If all of the family assets are held in the name of the testator, a will which disinherits his spouse may leave her with nothing, even though she could have divorced him a week before his death and claimed half of those assets under the Family Relations Act.  In itself, this may be a good argument for allowing the WVA to continue to apply to spouses, at least in respect of family assets.  
But there is really no good basis for giving the court the power to rewrite a will in favour of a disinherited, but perfectly capable, adult child.
In most if not all other provinces in Canada, the equivalent legislation goes only so far as to apply to prevent destitution.  BC is, I believe, the only province where the court has the broad power to rewrite wills in all cases.
I am not arguing for the repeal of the WVA.  A simple amendment would narrow its focus to only those cases where there is a good case for it.  Isn’t it time to reform the Wills Variation Act?

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