When it comes to estate planning, wills reign supreme. That is, a will is a person’s best opportunity to outline how they would like their assets to be distributed after they die. But what happens when a beneficiary (or another person) disagrees with the instructions a will-maker has left in their will? This is where wills variation comes in.

What is Wills Variation?

Wills variation is a legal process wherein a person applies to court to challenge or alter the provisions of a deceased person’s will. Wills variation is intended to ensure fairness to beneficiaries and loved ones. It also addresses situations where a testator’s intentions do not necessarily align with the expectations of potential beneficiaries, for example, in a situation where a testator chooses to disinherit a spouse or child.

Wills Variation in Ontario

The specific laws governing will variations differ between Canadian jurisdictions. For example, in British Columbia, the Wills, Estates, and Succession Act governs wills variation, while the Succession Law Reform Act governs the same in Ontario.

Unlike other jurisdictions, Ontario does not have dedicated wills variation legislation, nor is there a requirement that testators must be fair or treat family members equally. However, there are some exceptions that will-makers should know about.

Wills Variation and Dependants

Section 58 of the Succession Law Reform Act notes that where a testator has not made “adequate provision” for the proper support of their dependants, the court can make an order that assets be taken from the estate to ensure they are properly supported. Such orders can be made by the dependant or by other prescribed parties, including a parent of the dependant or the Ministry of Community and Social Services.

To be classified as a “dependant”, the individual in question must have been financially dependant on the testator before their death.

Wills Variation and Married Spouses

When someone passes away, their married spouse has the right to elect to either inherit from the estate under the testator’s will or to inherit from the estate under the Family Law Act.

In the latter case, a married spouse would inherit the amount of the estate they would have been entitled to have the parties divorced immediately before the deceased’s death. Therefore, if someone left less to their married spouse in their will than they would have received in a divorce, they may be entitled to effectively “challenge” the will under the Family Law Act.

However, it is important to note that this election does not apply to common-law spouses in Ontario.

Wills Variation and Ex-Spouses

If a testator is required to support an ex-spouse by way of a separation agreement or court order, their support must be paid before the estate is distributed to beneficiaries. While support requirements will vary based on their nature, it is important to keep these obligations in mind and consider how they may impact a future estate.

Who Can Bring a Wills Variation Claim?

The Succession Law Reform Act governs wills variation in Ontario. Under this legislation, the following individuals may be eligible to bring a wills variation claim against an estate:

• Married and common-law spouses who have cohabitated with the will-maker for at least three years or are the parent of a child of the will-maker;
• Former spouses may be entitled to bring a wills variation action if they are not adequately provided for in the will;
• Biological or adopted children, regardless of age, may have the right to bring a wills variation claim if they are not adequately provided for in the will; and
• Other “dependants” (e.g., those who the testator financially supports) may be entitled to bring a wills variation action.

However, being eligible to bring a wills variation claim does not automatically entitle someone to a larger portion of the testator’s estate. Rather, the court will look at various factors when deciding whether to vary the will.

When Will the Court Vary a Will?

When determining whether to vary a will, the court will need to determine whether the individual is entitled to bring a wills variation claim and, if so, whether the circumstances are appropriate for varying the will.

Can the Claimant Bring a Wills Variation Claim?

The court will start its analysis by determining whether the individual in question falls within one of the prescribed categories eligible to bring a claim under the Succession Law Reform Act.

In the more nebulous category of “dependants,” the individual will need to prove that they fall within the list of persons related to the testator who qualifies as “dependants” and that the testator was providing support (or was under a legal obligation to provide support) before their death.

Did the Will-Maker Make “Adequate, Just, and Equitable” Provision for the Claimant?

Once the individual has established that they are eligible to bring a wills variation claim, the court will determine whether the will makes “adequate, just, and equitable” provision for the individual.

In Canada, courts will look at several factors when determining whether a will should be varied based on those considerations outlined in Tataryn v. Tataryn Estate. This case states that the court should always be cautious when varying a will, as any variation impacts the will-maker’s autonomy, and will typically avoid varying a will unless it fails to make adequate, just, and equitable provision for a dependant, or otherwise fails to meet a legal duty.

For this analysis, the court will often take a holistic approach, looking at the relationship between the parties, the claimant’s financial dependance on the will-maker, and, in some cases, broader “moral duties” that may be relevant in the circumstances.

Final Thoughts on Wills Variation in Ontario

Unlike other Canadian jurisdictions, Ontario does not have legislation explicitly providing for wills variation. Rather, the courts have taken a more conservative approach and will typically avoid varying a will unless clear circumstances require it.

As every situation is different, it is essential to consult with an estate litigation lawyer if you have concerns relating to your entitlement to estate assets.

The Estate Lawyers at Campbells LLP in Oakville Help With Clients Plan for the Future and Resolve Estate Disputes

The compassionate lawyers at Campbells LLP in Oakville have been servicing clients with various estate matters since 1999. Our firm offers comprehensive legal services in all aspects of estate law, including both proactive estate planning and complex estate litigation. Our lawyers are thorough, efficient, and focused on delivering the best possible outcome for each client. If you have questions about preparing for your future or are involved in an altercation regarding estate distribution, contact us online or call our office at (905) 828-2247 to learn how we can assist you.