Is a child or spouse’s ability to challenge a will in jeopardy?

Under the Wills, Estates and Successions Act (“WESA”) of British Columbia, the court can vary a will if it finds that the will does not provide adequate, just, and equitable provisions for the deceased’s spouse and/or children. This allows independent adult children to make a claim for variation of a will if they have been disinherited, or feel they have been treated unfairly. For a more detailed explanation on testamentary freedom and wills in BC, please see our previous article.

The recent case of Jean-Richard-Dit-Bressel v Carr, 2020 BCSC 946 (“Carr”) may upend the current wills regime. In this case, the defendants in a wills variation claim sought to bring a constitutional challenge to the wills variation provisions in WESA. The defendants allege that allowing non-dependent adult children to bring wills variation claims infringes on the deceased’s testamentary autonomy and unjustifiably violates their right to life, liberty and security of the person under section 7 of the Charter of Rights and Freedoms (the “Charter”).

The constitutional challenge is based on a decision made last year in Lawen Estate v Nova Scotia (Attorney General), 2019 NSSC 162, where the Supreme Court of Nova Scotia found that their version of WESA violated the deceased’s section 7 rights of the Charter and were not justified under section 1 of the Charter. The Court read down the provisions to exclude non-dependent adult children from bringing a wills variation claim. This decision is now under appeal to Nova Scotia’s Court of Appeal, and then potentially to the Supreme Court of Canada.

As of now, the wills regime in British Columbia remains unchanged. If the defendants in Carr ultimately succeed in their constitutional challenge, this may result in non-dependent adult children who have been unjustly disinherited or unjustly treated by the will-maker, having little recourse to challenge the will. This could disproportionately impact children who suffer the negative effects of sexual orientation and gender bias, and/or preferential gender treatment. We will be providing updates as this challenge unfolds. As always, if you have questions about Estate Litigation, please contact us for a consultation.