What can be done when, upon the death of the testator, a child or spouse feels they have been unfairly treated in the will? Do they have any recourse and does anyone have the power to change it? Within British Columbia we have the Wills Variation Act, R.S.B.C. 1996, c. 490. This important piece of legislation gives the courts the power to alter a will in certain situations where they feel that a child or spouse has not been treated fairly and justice must be done. The core of the power is found in s.2:
…if a testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, 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.
When a will is brought before the court and, in their opinion, the will fails to make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may, at their discretion, alter the will to remedy the injustice. At first glance this may seem to somewhat fly-in-the-face of the principle that we may do what we choose with our property, but the courts do default to “testamentary autonomy”, abiding by the wishes of the testator. The courts seek to maintain a balance of ensuring “adequate, just, and equitable” provision for the spouse and children and upholding the testator’s freedom. The courts safeguard the use of the above legislation, but occasionally there are situations which are unjust and the courts will only interfere with a testator's wishes as far as necessary.
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