Toward a new wills variation act


University of British Columbia

Date Issued


Document Type



Master of Laws - LLM




Most common law and civil law jurisdictions have laws in place to provide a safety net so that those who are unfairly disinherited will be able to claim a share in a deceased's estate. Since 1920, British Columbia has been one of those jurisdictions in which a testator's distribution scheme may be varied at the discretion of the Court. However, the absence of a stated purpose of the legislation, a broad judicial discretion to determine what is adequate provision for a spouse and children and the failure of the Supreme Court of Canada in Tataryn v. Tataryn to bring certainty and predictability to the law point to a need for reform. The goal of this thesis is to complete the sentence "the purpose of legislation restricting testamentary freedom is . . . . " and to make recommendations for legislative change to accomplish this purpose. An overview of the law in British Columbia today and the arguments for reform will be outlined in chapters 1, 2 and 3. Chapters 4 through 8 will examine a number of topics to extract policies which might assist in the formulation of a dependant's relief statute's purpose. Historical concepts, family, intestacy and wrongful death legislation as expressions of values will be reviewed. From the doctrine of unjust enrichment, a cause of action independent of a statute, a contract or a tort, but now widely used in claims between family members, will be extracted principles which recognize compensation for the contribution of services and money between family members. Empirical studies about testators' intentions, family and other private relations will be noted in chapter 9. Lastly, chapter 10 will make a number of recommendations for reform. These include: (a) A statement of the statute's purpose. Persons who have lived together in a relationship of some permanence with financial and emotional interdependence should share equally the assets acquired during their time together and the survivor's need for support should be recognized. Children's support needs should also be met but the testamentary autonomy of persons should be subject only to these two objectives. (b) The broadening of categories of claimants to include cohabitants and stepchildren with the introduction of age and dependency criteria for the latter. (c) Criteria to be used in making reasonable financial provision for spouses and children. (d) A priorities scheme. (e) The right to waive the statutory rights by agreement. No attempt is made to provide recommendations for all of the issues that would arise under a new statute.


Probate law and practice - British Columbia; Wills - British Columbia

Date Available



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