This page gives information about wills variations impacting people under 19 and incapable adults, and trust and settlement variations on behalf of beneficiaries.

Wills variations - general information

Sometimes the will of a deceased person does not adequately provide for the proper maintenance and support of their children or their spouse. When that happens, the children or spouse has the legal right to start a wills variation action under the Wills, Estates and Succession Act (WESA). A wills variation is an application to the court to vary the deceased person’s will.

A wills variation action must be commenced by notice of civil claim within 180 days of the date of the representation grant. A representation grant is sometimes called an estate grant, this is a document that says who has been legally proven to be the executor named in the will.

The Public Guardian and Trustee (PGT) receives notice from an applicant for a grant of probate or letters of administration on behalf of a child/youth (under the age of 19) of the deceased, or an incapable spouse or adult child of the deceased. For more information, see Grant application review services.

Court’s consideration in wills variation claims

The court may look at a number of factors when considering whether to vary a will of a deceased person, including:

• Legal and moral obligations of the deceased to their spouse and/or children
• Estrangement and neglect between the parties
• Gifts and benefits made during the deceased’s lifetime
• The financial circumstances of the parties
• Size of the estate
• The deceased’s reasons for disinheritance/unequal provision

Wills variations impacting people under the age of 19

Child/youth as a claimant in wills variation actions

Normally, a wills variation action is not brought on behalf of a child/youth when the will maker leaves their estate to the surviving natural parent. It is expected that the surviving parent will typically continue to look after the child/youth.

However, there are situations when a wills variation action may be brought on behalf of a child/youth to protect their interests. These include, but are not limited to:

• A child/youth has been excluded from the will of a deceased parent when the parents are divorced
• A will maker leaves their estate to the child/youth 's step parent

If it looks like the child/youth may have a viable wills variation claim, we seek to make sure the child/youth’s parent, and guardian or someone else acts as litigation guardian for the child/youth and instructs counsel. A litigation guardian is a person who has the authority to instruct legal counsel throughout a litigation. Litigation is the act, process or practice of settling a dispute in a court of law.

If it looks like steps are not being taken to protect a child/youth’s legal interests, we may initiate a legal claim and instruct counsel on behalf of the child/youth. We also generally seek payment of counsel's fees from the estate.

Children/youth as defendant in wills variation actions

• Sometimes, a spouse or adult child seeks a share or larger share of the deceased's estate.
  If successful, this wills variation action could reduce the inheritance of the child (under the age of 19) of the deceased. In this case, the child beneficiary's parent or guardian may need to arrange for a lawyer to represent the child. If the parent or guardian or someone else cannot act as litigation guardian, the PGT may take on that role.
   
• Sometimes, a wills variation action may propose to reduce or eliminate the share of a child/youth who is not the will maker's child/youth.
  The litigation guardian would normally instruct counsel on the child/youth’s behalf unless they have a conflict of interest. If they or someone else cannot act as litigation guardian for the child/youth, the PGT may consent to act.

Parties seeking to vary the will may sometimes agree to leave any gifts to a child/youth intact

The PGT may act as litigation guardian for the child/youth and not retain outside counsel. This saves the estate additional lawyer fees. If the interests of the child/youth need more than monitoring, we may retain counsel for the child/youth.

PGT comments to the court

Only the court has authority to vary a will under the Wills, Estates and Succession Act (WESA). However, in some cases where the only beneficiaries are capable adults, they may agree among themselves to distribute an estate in a way other than that directed in the will.

No one can consent to such an agreement on behalf of a child/youth. When a child/youth is involved, an application to vary the will must be made to the court. The PGT must be served with a copy of the notice of civil claim.

We may provide written comments to the court about the merits of the proposed settlement. Our written comments are generally provided to legal counsel to take to court. The PGT is entitled to appear in court if necessary.

Wills variations impacting incapable adults

PGT role in wills variation actions involving incapable adults

We must receive notice from an applicant for a grant of probate or letters of administration on behalf of an adult who is or may be incapable, and who is a spouse or child of the deceased. Part of this review is to determine whether the deceased person’s will adequately provides proper maintenance and support to the spouse or adult child. For more information, see Grant application review services.

If it looks like the spouse or adult child has a good claim to vary the deceased person’s will, we make sure there is someone to look after their interests. Or, we may decide to act as litigation guardian for the incapable adult and pursue a claim. In these circumstances, we seek payment from the estate or the adult’s share of the estate.

If it looks like the incapable adult may be a defendant in a wills variation claim, we make sure there is someone to defend them. If not, we may consider becoming their litigation guardian. In these circumstances, we seek payment from the estate or the adult’s share of the estate.

Regardless of whether the incapable adult may have a claim or may need to defend a claim, the PGT must be served with a copy of the notice of civil claim to vary a will.

PGT review of wills variation settlements on behalf of incapable adults

Only the court has authority to vary a will under WESA. In some cases where the only beneficiaries are capable adults, they may agree among themselves to distribute an estate in a way other than that directed in the will.

Only an adult, their legal representative or their litigation guardian can consent to such an agreement on behalf of an incapable adult. The PGT receives notice of applications to approve wills variation settlements. We may provide written comments to the court about the merits of the proposed settlement. Our written comments are generally provided to legal counsel to take to court. The PGT is entitled to appear in court if necessary.

Serving notice to the PGT

How to serve notice of a civil claim to vary a will on the PGT

Please submit your application and payment online. If you are not able to submit online or run into any difficulties making your submission, please contact us at cyslegal@trustee.bc.ca (people under 19) or stalegal@trustee.bc.ca (incapable adults) for assistance.

Fees and expenses

The PGT charges the following fees:

• $105.00 ($100.00 plus 5% GST) to examine a proceeding to vary a will
• $525.00 ($500.00 plus 5% GST) to review and comment on a proposed settlement of a proceeding to vary a will
• If the PGT decides to act as litigation guardian, a fee of $367.50 ($350.00 plus 5% GST) applies

All fees charged by the PGT are set by the B.C. government in the Public Guardian and Trustee Fees Regulation. For more information, see Fees for protective legal review services.

If we retain counsel, we will seek payment of counsel’s fees from the estate.

Trust and settlement variations on behalf of beneficiaries

A trust may be varied with the consent of all the beneficiaries of the trust, provided they are of age and mentally competent. However, when the beneficiaries of the trust include children/youth under the age of 19, unborn or unidentified persons, or persons lacking mental capacity, an application to approve a variation of the trust on their behalf must be brought under the Trust and Settlement Variation Act.

The PGT’s role in trust and settlement variations involving beneficiaries

In these circumstances, anyone applying to vary a trust under the Trust and Settlement Variation Act must serve the Public Guardian and Trustee (PGT) with the following, no less than 10 days before the date of the application:

• Notice of the application in writing
• A copy of the material filed in support of the application

We generally provide written comments on the proposed arrangement to legal counsel acting for the applicant, which counsel provides to the court. Counsel for the PGT may appear at the hearing and seek appointment under the Supreme Court Civil Rules to represent the beneficiary. The PGT is entitled to any costs that the court may order.

Applications under the Trust and Settlement Variation Act are complex and time-consuming. Please provide us with as much notice as possible so we can quickly address any concerns. We review the application and material to:

• Consider how the proposed arrangement will affect the interests of the beneficiary
• Ensure the beneficiary will receive a tangible benefit from the proposed arrangement

How to serve notice of a trust and settlement variation on the PGT

Please submit your notice and payment online. See Referrals and Submissions. If you are not able to submit online or run into any difficulties making your submission, please contact us at cyslegal@trustee.bc.ca (people under 19) or stalegal@trustee.bc.ca (incapable adults) for assistance.

Fees and expenses

The PGT charges a fee of $787.50 ($750.00 plus 5% GST) to review an application under the Trust and Settlement Variation Act. All fees charged by the PGT are set by the B.C. government in the Public Guardian and Trustee Fees Regulation. For more information, see Fees for protective legal review services.

If we retain counsel, we will seek payment of counsel’s fees from the estate.