Sometimes the will of a deceased person does not adequately provide for the proper maintenance and support of their spouse or adult child.Sometimes the will of a deceased person does not adequately provide for the proper maintenance and support of their spouse or adult child.Sometimes the will of a deceased person does not adequately provide for the proper maintenance and support of their spouse or adult child.Sometimes the will of a deceased person does not adequately provide for the proper maintenance and support of their spouse or adult child.Sometimes the will of a deceased person does not adequately provide for the proper maintenance and support of their spouse or adult child.v When that happens, the spouse or adult child 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 started by notice of civil claim within 180 days of the date of the representation grant. A representation grant, sometimes called an estate grant, 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 an incapable spouse or adult child of the deceased. For more information, see Grant application review services.
Court’s considerations 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
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.
How to serve notice of a civil claim to vary a will on the PGT
Please submit your application 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 stalegal@trustee.bc.ca 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.