Hobbs Giroday Podcast Episode 8

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.

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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