Wills Variation Claims in British Columbia (WESA s. 60)

What does the court consider?

The big picture: “adequate, just and equitable”

The core question is whether the will made adequate provision, and if not, what outcome is adequate, just and equitable. The Supreme Court of Canada has described these as “two sides of the same coin,” and emphasized that the court’s task is guided by modern values and expectations—“the search is for contemporary justice.”

Legal and moral obligations

BC courts assess a will-maker’s obligations in two buckets:

• Legal obligations (what the law would likely have required while the will-maker was alive—often most significant for spouses and dependent children)
• Moral obligations (what a fair-minded person would have done, judged by contemporary community standards)

For adult independent children, the analysis often focuses on the will-maker’s moral duty, and courts have recognized that—where the estate permits—some provision may be appropriate, unless there are circumstances that negate that duty.

Common factors BC courts look at

Every case is different, but the court commonly considers things like:

• the nature of the relationship between the will-maker and the claimant (including any estrangement)
• the size of the estate and competing claims
• the claimant’s circumstances (health, disability, earning capacity, caregiving, contributions)
• lifetime gifts and benefits already received by family members
• any promises or expectations created by the will-maker
• whether there is “just cause” that meaningfully reduces or negates the will-maker’s moral duty

This is why two cases that look “similar” at first glance can have very different outcomes.

“They had reasons for disinheriting me.” Does that end the claim?

Not necessarily.

BC courts do consider the will-maker’s reasons—but the key question remains what a reasonable will-maker would have done, based on today’s values. The Court of Appeal has clarified that even where a will-maker gives “valid and rational” reasons for unequal treatment, the court does not simply defer to that choice; the moral duty must still be assessed using an objective standard and current social norms, and may only be negated where there is just cause.

Estrangement: an important factor, but not a simple “yes/no”

Family estrangement often sits at the centre of wills variation disputes. Courts look carefully at:

• what caused the estrangement,
• whether it was mutual,
• whether there were attempts at reconciliation, and
• whether the will-maker’s moral duty was reduced or negated by the circumstances.

A breakdown in relationship does not automatically defeat a claim—but it can be a major factor depending on the evidence.

Blended families: second spouse vs. adult children (and “assets outside the will”)

In blended-family estates, courts frequently weigh the competing moral claims of a second spouse and adult children from a prior relationship. One important practical point is that the will-maker may have provided for a spouse outside the will, for example through joint tenancy (right of survivorship). In Eckford, the Court of Appeal considered whether the spouse had already been “taken care of” through survivorship, and assessed whether that overall provision was “just and adequate” in the circumstances.

If you suspect assets were moved outside the estate (joint accounts, beneficiary designations, trusts), a wills variation claim may still be possible—but the strategy may require looking at the full estate plan, not just the will.

Lifetime gifts can matter a lot

Wills variation is not only about what happens at death. Courts may consider significant inter vivos (lifetime) gifts and whether they effectively satisfied (or increased) the will-maker’s obligations.

For example, in Lam, the court considered evidence of substantial lifetime gifts and preferential treatment, and emphasized that “contemporary justice” does not align with discriminatory assumptions (such as favouring a child based on gender).

Deadlines: when do you have to start a WESA s. 60 claim?

Timing is critical. Under WESA, a wills variation action must generally be commenced within 180 days of the grant of probate (or administration), and it must then be served within the required timeframe.

Because estates can start distributing soon after probate, it’s smart to get legal advice early—even if you’re still gathering information.

What evidence can the court consider?

The court may consider a wide range of evidence, including evidence about the will-maker’s reasons and surrounding circumstances. WESA specifically permits the court to accept evidence of a will-maker’s reasons (including a written statement), and sets out rules about when that evidence can be used.

In practice, key evidence can include:

• the will and prior wills
• communications with the will-maker
• caregiving history and financial contributions
• medical and disability evidence
• documentation showing lifetime gifts or benefits
• (sometimes) the drafting lawyer’s records, depending on the issues

How we help (and what you can expect)

If you contact us about being disinherited, we typically help clients by:

1. Assessing eligibility (spouse/child status under WESA)
2. Explaining the likely range of outcomes based on the leading case law on legal and moral obligations
3. Moving quickly to protect deadlines (the 180-day limitation period)
4. Building the evidence to show what is “adequate, just and equitable” in your circumstances
5. Negotiating a resolution where possible, and litigating when needed

Frequently asked questions

“I’m an adult child with my own job. Can I still bring a claim?”

Often, yes. BC courts have confirmed that financial need is not required for an adult independent child to succeed; the focus is on the will-maker’s legal and moral obligations and what is fair in modern terms.

“My parent said they had ‘reasons’ to leave me out.”

Reasons matter, but they are not the whole analysis. The court applies an objective lens and current social norms; “valid and rational” reasons do not automatically prevent a variation.

“I was estranged. Does that mean I have no case?”

Not necessarily. Estrangement is a key factor, but the court examines the history and whether there is just cause that reduces or negates the will-maker’s moral duty.

“What if most assets passed outside the will?”

That’s common (joint ownership, beneficiary designations, trusts). A wills variation claim may still be available, but a good strategy often requires assessing the entire estate plan.