Mar 10, 2020

A Testator Cannot Override a Beneficiary’s Statutory Right to Vary a Will

Bellinger v. Fayers, 2003 BCSC 563 (CanLII)

A spouse or child of a deceased person may apply to vary the will of that deceased person, if they do not believe that it made adequate provision for them. This is obviously frustrating to testators who wish to have the autonomy to distribute their estate as they see fit.

To discourage wills variation claims, testators have attempted to include clauses to discourage wills variation claims or threaten consequences for bringing such claims. These provisions have been held to be contrary to public policy and void.

For example, in Bellinger v. Nuytten Estate 2003 BCSC 563, the deceased included a clause in her will which provided that if any of the beneficiaries contested the terms of the will, then that beneficiary shall forfeit any legacy they may be otherwise entitled to receive. The clause was void since it was against public policy to allow a testator to override a beneficiary’s statutory claim (to vary a will) by a provision in her will.

In Ketcham v. Walton 2012 BCSC 175, the deceased left a will that disinherited his adult independent children and instead left his estate to several friends and charities. The will instructed the executor to take an active role in defending the will if any of the children brought a wills variation claim. The will stated that the executor was authorized to deplete the estate, if necessary, to defendant against the wills variation action, taking as many appeals as necessary to ensure that the deceased’s intentions are carried out.

The court held that while this clause does not obviously prevent a beneficiary from an inheritance if they bring a wills variation claim, that possibility existed. As a result, the clause was void as contrary to public policy, as it purported to deny the deceased’s children their recourse to the courts. It was, in effect, the same as what the deceased tried to do in the Bellinger case.

The clause in Ketcham also offended the rule that the executor must remain neutral in wills variation proceedings. An executor cannot choose sides and take an active role in a wills variation claim.

The courts will not permit a testator to override a spouse or child’s statutory right to apply to vary a will, and any attempt to do so will likely be held to be void. If you are a testator seeking to avoid wills variation claims, there are other steps which ought to be taken instead. If you are an executor, you should not take an active role in wills variation litigation. If you are a disappointed beneficiary, you should not be dissuaded from pursuing your rights by such a clause.

[This post by James Zaitsoff first appeared on the BC Estate Litigation Blog on February 28, 2020]