Wills Variation Claims
With David Hobbs and Ian Giroday. In this episode David and Ian will explain the basics of a Wills Variation claim and who can bring one forward.
Show Notes Episode 8:
David Hobbs explains a Wills Variation claim:
- Claim has to be brought within 6 months of grant of probate.
- If the estate is distributed within 6 months of probate and there is a wills variation claim, the executor may be liable if that claimant is successful.
- A Wills variation claim is brought by notice of civil claim – you are starting a lawsuit, alleging that the will doesn’t make an adequate, just, or reasonable gift.
- Canadian case called Tataryn v. Tataryn Estage clarifies some of the law regarding Wills Variation claims.
- Please see this article for more on Tataryn v. Tataryn Estate
- Basic concept is that a deceased owes a legal duty and moral duty to a spouse or common law spouse, a legal and a moral duty to infant children under 19, and a moral duty to adult children.
- The legal test: the reasons for the disinheritance have to be valid and rational.
- These types of claims require a fact rich investigation.
Ian Giroday explains who can bring a claim:
- Under WESA, only spouses and children can seek to vary the will maker’s will.
- Children include natural children and children adopted by the will maker.
- One exception is that a child who has been adopted can not bring a claim against their natural father or mother.
- Step children do not qualify unless adopted by the will maker.
- Spouses include both legal marriage and common law relationships.
- Wills Variation legislation takes guidance from family law regarding the status of the legal marriage.
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