Can a Grandchild Challenge a Will in BC? Bennison v. Bennison Has the Answer.
Case Commentary: Bennison v. Bennison, 2025 BCCA 195 · Decided June 13, 2025 · British Columbia Court of Appeal
When a parent dies without leaving anything to their children or grandchildren, the sense of betrayal can be profound. BC’s Wills, Estates and Succession Act (WESA) provides a safety valve — section 60 — allowing certain family members to ask a court to vary a will that fails to make adequate provision for them. But “certain family members” means exactly that. In Bennison v. Bennison, the BC Court of Appeal clarified, firmly and unanimously, who gets through that door — and who does not.
The Family at the Centre of the Dispute
Robert Bennison died on August 31, 2022, leaving a July 2019 will that split the residue of his estate between his son Kyle (50%) and three stepchildren (50%). His son Ronald received nothing. His other two children, Brian and Renee, had died long before Robert — Brian in 1990 and Renee in 2012.
Brian’s son (Robert’s grandson) was upset that he would not receive any share of Robert’s estate through his predeceased father. Acting on his own behalf — and as the claimed personal representative of Brian and Renee’s estates — he launched a civil claim seeking to vary his grandfather’s will and challenge its validity on grounds including lack of testamentary capacity and undue influence.
Both the BC Supreme Court (Justice Hardwick, 2024) and the Court of Appeal dismissed his claims entirely.
“I simply see no viable basis in the statute or the case law to suggest that testators owe moral or legal obligations to long-dead children when distributing their assets.”
— Abrioux J.A., Bennison v. Bennison, 2025 BCCA 195 at para. 36
Issue #1: Grandchildren Cannot Vary a Will Under WESA s. 60
Section 60 of WESA is BC’s wills variation provision. It allows a court to order adequate provision from an estate where a will-maker fails to make adequate provision for the “proper maintenance and support” of their spouse or children. Those are the only two categories.
Erich argued that WESA was “completely silent” on excluding grandchildren and that courts should read the provision more generously. The Court of Appeal was unmoved. Justice Abrioux noted that the words of the section are unambiguous — they have read “spouse or children” since BC’s original Testator’s Family Maintenance Act of 1920 — and the Legislature has had over a century to add grandchildren if it wished. It has not. Erich ultimately conceded this point at the hearing.
Key Legal Rule
Only a will-maker’s spouse or children have standing to bring a wills variation claim under WESA s. 60. Grandchildren, siblings, stepchildren, and other relatives are excluded.
This rule has remained unchanged since BC estate legislation was first enacted in 1920.
Issue #2: The Estate of a Predeceased Child Cannot Vary the Will Either
This was the more novel question before the court. Even accepting that Brian was Robert’s child, Brian died in 1990 — 32 years before Robert. Erich argued that as Brian’s personal representative, he could bring a wills variation claim on behalf of Brian’s estate.
The Court of Appeal disagreed.
When Does the Right to Vary a Will Arise?
The court confirmed, relying on a line of authority stretching back to the Supreme Court of Canada’s 1931 decision in Walker v. McDermott, that the right to bring a wills variation claim vests only at the moment of the testator’s death. Before that moment, there is no claim to bring — because there is no will to challenge, no estate to draw from, and no determination of what provision is “adequate”.
WESA s. 150(2) allows a personal representative to pursue claims the deceased person could have commenced. But Brian could not have commenced a wills variation claim against Robert while Robert was alive — that right did not yet exist. And once Robert died and the right arose, Brian was already long dead. The right, in legal terms, never vested in Brian, and so it could never pass to his estate.
What About the Moral Duty Argument?
Erich pressed a creative argument rooted in Tataryn v. Tataryn Estate [1994] 2 SCR 807, the leading Supreme Court of Canada case on wills variation. He argued that a testator’s moral obligations extend to long-deceased children — and by extension, their estates.
The court rejected this squarely. As Justice Abrioux put it, the purpose of the maintenance and support provision is to benefit living people with actual needs. A testator cannot fail to provide “adequate maintenance and support” for someone who is already deceased and therefore has no needs. While moral obligations under Tataryn go beyond bare need, they do not stretch so far as to benefit the estate of a child who predeceased the testator by three decades.
Five Key Takeaways from Bennison v. Bennison
- Grandchildren have no standing under WESA s. 60. No matter how close the relationship or how unfair the will, a grandchild cannot personally apply to vary a grandparent’s will.
- Children who predecease the testator lose their variation rights. The right under s. 60 vests at the testator’s death — if the child is already gone, the right never arises.
- Estates of predeceased children cannot inherit the variation right. A personal representative can only pursue claims the deceased person could have brought. If the right never vested, there is nothing to pass on.
- Moral obligation arguments don’t override statutory text. Courts interpret “spouse or children” as written. Sympathetic facts cannot expand the class of eligible claimants.
- A will with an attestation clause is presumed valid. Challenging testamentary capacity requires actual evidence — not conjecture. Robert’s 2019 will had proper execution formalities and was presumed valid.
- But a different avenue may exist. Grandchildren and others excluded from s. 60 may still have standing to challenge a will’s validity — on grounds such as lack of capacity, undue influence, or suspicious circumstances — if they are named beneficiaries under a prior will. This is a distinct legal route that turns on who stands to benefit, not on the s. 60 categories.
Issue #3: The Will Validity Challenge Also Failed
Erich also alleged that Robert lacked testamentary capacity when making his 2019 will and that Kyle had exercised undue influence — pointing to Robert’s recent brain surgery and changes in estate planning that followed Kyle’s visit. The court found these allegations were not properly pleaded with material facts in Erich’s Amended Notice of Civil Claim.
More fundamentally, the court reasoned that even if the 2019 will and the March 2019 will were both invalidated, Robert’s earlier 2001 will would remain presumptively valid — and that will made no bequest to Brian in any event. Since the pleadings contained no material facts challenging the 2001 will, there was no realistic scenario in which Erich could benefit from an intestacy of Robert’s estate.
A Different Avenue: Challenging Will Validity Based on a Prior Will
While Bennison firmly closes the door on wills variation claims by grandchildren and the estates of predeceased children, it does not foreclose every avenue of recourse. There is an important distinction between a wills variation claim under s. 60 — which is purely statutory and limited to spouses and children — and a will validity challenge, which is a different type of proceeding governed by different rules.
A will validity challenge attacks the legal effectiveness of the will itself, on grounds such as lack of testamentary capacity, undue influence, fraud, or suspicious circumstances surrounding the will’s execution. These challenges are not limited to spouses and children. Anyone with a financial interest in the outcome — including a grandchild or the estate of a predeceased parent — may have standing to bring such a challenge, provided they would benefit if the impugned will were set aside.
This is where a prior will becomes legally significant. If the testator made an earlier will that named a grandchild, or named a child (whose estate the grandchild now represents) as a beneficiary, and the later will revoked those gifts, the grandchild or personal representative may have a direct financial stake in seeing the later will invalidated. That financial interest can confer standing to challenge the later will’s validity — even though it would never confer standing under s. 60.
Important Distinction
Wills variation (WESA s. 60): Asks the court to rewrite a valid will to make adequate provision. Standing is limited to spouses and children only.
Will validity challenge: Asks the court to invalidate the will altogether (e.g., due to lack of capacity or undue influence). Standing is available to anyone with a financial interest — including grandchildren or estates of predeceased children — if they would benefit under a prior will or on intestacy.
In Bennison, this avenue was effectively unavailable to Erich because the 2001 will — the one that would have governed had the later wills been struck down — made no provision for Brian. Even a successful validity challenge would not have put money in Brian’s estate. The lesson for other families is that the strength of a validity challenge depends heavily on what a prior will or intestacy would deliver. Where a grandchild or predeceased parent’s estate stands to benefit meaningfully from an earlier will, a properly pleaded validity challenge — supported by evidence of suspicious circumstances, capacity concerns, or undue influence — may be a viable path worth exploring with counsel.
What This Means for BC Families
Bennison v. Bennison is a reminder that estate planning decisions have long shadows — and that BC’s wills variation law, while powerful, has firm limits. Families in blended situations, with stepchildren, with children who may predecease a parent, or with grandchildren who may feel entitled to share in an estate, need to understand these boundaries before a loved one dies.
For individuals making a will, this case underscores that deliberate planning is essential. If you wish to provide for grandchildren or others outside the s. 60 category, clear testamentary gifts are the proper vehicle — not reliance on courts to fill gaps after death.
For families navigating estate disputes, this case is a caution against litigation premised on sympathy rather than legal standing — but it is not the end of every inquiry. Where suspicious circumstances surround a will’s creation and a prior will exists that benefits the claimant, a validity challenge may remain open. The analysis is fact-specific and the stakes are high; early legal advice is essential.
Disclaimer
This blog post is provided for general informational purposes only and does not constitute legal advice. Estate law is highly fact-specific and the law may have changed since publication. Please consult one of our BC estate lawyers regarding your specific situation.
