What property does the Wills Variation Act cover?

In order for the Wills Variation Act ("WVA") to help there must be a valid will.  If the individual has died intestate, meaning that they had not made a valid will or other binding declaration, then the Act may not apply.  The property that the Act covers is that which is contained within the valid will (Hammond v. Hammond (1995), 7 B.C.L.R. (3d) 25 (S.C.)).  Remember, in using the Act, you’re not contesting the validity of the will but rather how exactly the property has been distributed.*

The property that the WVA acts upon is dependent on where the testator lived at the time of death.  If they lived in British Columbia at the time of death, then all of the real and personal property which BC courts have authority over will be available.  Conversely, the WVA only reaches land owned in BC if the testator did not live in BC at the time of death (In re Rattenbury Estate, [1936] 2 W.W.R. 554 (B.C.S.C.)).

Property changes hands ever frequently and assets that have been passed to others or gifted during the lifetime of the deceased are not covered by the WVA.  These may be referred to as inter vivos (“between the living”) gifts.  If the living donor, the person giving the gift, intends the transfer to be immediate and irrevocable, the gift is said to be “perfected” during the lifetime and constitutes an inter vivos gift – it would then be out of reach of the WVA.* (Feeney’s Canadian Law of Wills)

Examples of assets that do not form part of the estate and are not caught by the Act are:**

1.       Inter vivos gifts and those assets settled on inter vivos trust.

2.       Life insurance policies, segregated funds, RPPs, RRIFs, or RRSPs if designated one or more beneficiaries and they survive the life of the insured. 

3.       Joint tenant interests, including joint bank accounts and property owned in joint tenancy.  These assets will pass by law to the surviving joint tenant(s) by right of survivorship. 

The WVA does not contain anti-avoidance provisions so the above are also methods which a testator may employ in order to have property escape the reach of a claim.  Since a claim by an adult independent child or spouse on moral grounds under the WVA only arises upon the death of the testator, they are not “creditors and others” under the Fraudulent Conveyance Act, R.S.B.C. 1996, c. 163 and are not afforded its protection. (Hossay v. Newman (1998), 22 E.T.R. (2d) 150 (B.C.S.C.), Mawdsley v. Meshen, 2012 BCCA 91).  Unless they have a claim independent of the WVA, they will not be able to use the Fraudulent Conveyance Act to set aside the inter vivos transfer.**

BUT not all hope is lost if a large portion of the deceased’s property has passed outside of the estate.  It may be the case that the court finds that such inter vivos gifts, or that which passed to someone outside of the estate, are being held on resulting trust (link to info – this from CLE print out).  The case of Niles v. Lake, [1947] 2 D.L.R. 248 (S.C.C.) provides an example as the testatrix made all the deposits from her own money to a joint account with her sister and the court found the sister held the account on resulting trust for the deceased’s estate.  The surviving sister was not able to rebut the presumption of a resulting trust.

While property not within the will may be out of reach of the WVA, the courts have taken into account inter vivos transfers and assets that have passed by rights of survivorship on the death of the deceased when assessing whether there was “adequate provision for the proper maintenance and support” (Inch v. Battie, 2007 BCSC 1249).  The courts extend their dynamic approach when looking at assets that have been gifted during life and within a will. 

Learn more on how the Wills Variation Act may be avoided...

*Feeney’s Canadian Law of Wills

**B.C. Probate and Estate Administration

 

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