by Or Regev

Wills variation, or dependent relief, legislation has been present in Canada for almost a century, but I often hear people questioning why we have such laws and whether they exist outside of British Columbia or Canada. These are understandable head-scratchers. At first blush, wills variation seems a bit controversial, maybe even backwards, because we are essentially changing, in one way or another, someone’s will after they have died.

This begs the question, shouldn’t a person be able to distribute whatever assets to whoever they would like? If you agree with this statement you are advocating for a fundamental principle called “testator autonomy,” which would result in the will-maker’s wishes, as set out in their will, being honoured and left unchanged.  

Testator autonomy is an important principle that is routinely considered by courts in wills variation cases. However, if you consider the history of, and rationale for, enacting wills variation legislation, you may begin to acknowledge that wills variation serves an equally important purpose in Canadian society and may, at times, justify changing the distribution of a will despite testator autonomy.

As is the case with many legal principles and customs, commonwealth countries such as New Zealand and Canada adopted their succession laws from England, where testator autonomy was part of a social system that recognized the testator’s obligations to provide for his or her spouse and children. In other words, it was understood that when deciding what, and to whom, to leave in a will, testators would provide for their spouses and children. However, this practice was not embraced with open arms in New Zealand and it became commonplace for will-makers to disinherit their family members. As a result, in an effort to ensure will-makers upheld their social and moral duties to provide for their spouses and children, legislation was enacted to turn these duties into legal obligations.

In 1920, New Zealand became the first common law country to enact wills variation legislation; the legislation empowered a court to vary a will if it did not adequately provide for the maintenance and support of the testator’s spouse or children. Twenty years later, British Columbia followed New Zealand’s lead and enacted the Testator’s Family Maintenance Act. In doing so, British Columbia became the first province to enact legislation that allowed dependent children, not just spouses, to apply to vary a will. Currently, every Canadian province and territory has dependants’ relief legislation, though some vary in content and form.

As alluded to above, wills variation legislation is based on social and moral duties that embody Canadian values. For example, consider whether it would be “fair” for a father to disinherit his daughter because she is a female, or for a mother to disinherit her son because he is gay. Despite your personal beliefs on the matter, in Canadian society we try to promote progressive and inclusive values reflected through, among other things, our laws. Wills variation legislation is a good example of this, and as a result, will-makers cannot disinherit their children for discriminatory reasons, such as their gender or sexual orientation.

While wills variation is rooted in social and moral considerations, it also has a more practical benefit: resource redistribution. Individuals who are of limited financial means often rely on government assistance through subsidies, low-income housing, and other initiatives. Wills variation allows for a redistribution of wealth so these individuals need not rely on the government, thus saving valuable resources for the government to distribute elsewhere.

Wills variation is alive and well in British Columbia and Canada. If you are unhappy with a gift, or lack thereof, received under your parent’s or spouse’s will, you may be able to bring a wills variation claim.