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Wills Variation Act Violates
Charter
(March 2000)
by Del Elgersma
In January the B.C. Supreme Court ruled that B.C.'s Wills
Variation Act violates the Charter of Rights.
The Act permits a testator's wife, husband or child to apply
to the court to vary the will (a testator is someone who makes
a will). If the court agrees that the will does not adequately
provide for the testator's wife, husband or child, the court
may vary the will to provide for that person.
Because the Act does not give the same rights to a person who
was in a "marriage-like" relationship with the testator,
the court ruled that the Act violated the right to equality under
the Charter of Rights. The court's remedy was to "read into"
the Act the extended definition of spouse contained in the (not
yet in force) Definition of Spouse Amendment Act, 1999.
That Act defines spouse to include a common law spouse. A common
law spouse is defined as a person who has lived with another
person in a marriage-like relationship for at least two years
immediately before the other person's death. It specifically
includes a person in a marriage-like relationship with another
person of the same sex. As a result of this decision, many more
wills are open to challenge under the Wills Variation Act.
If you are concerned about your will
being challenged, please
call us to review the strategies that
are available to avoid
these claims.
PLEASE NOTE: The definition of spouse has
since been amended- click here for more information: New Definition of Spouse May Affect Your
Estate Planning.
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