Estate Litigation FAQ

What is the Wills Variation Act?


The Wills, Estates and Succession Act deals with what happens after death including:

  • ºHow to make a valid Will;
  • ºWhen and in what circumstances a Will can be varied;
  • ºGuidelines as to what happens when a person dies without a will; and
  • ºWhen the estate should be distributed.

I am not married. What happens if my long-term partner dies without a will?


The Wills, Estates and Succession Act does not distinguish between married and unmarried couples. It uses the term Spouse. A spouse is a married partner or someone you have lived with in a marriage-like relationship for at least the two years before the death.

  • ºIf your spouse had no children then his or her estate will go to you.
  • ºIf your spouse has children than you shall receive the household furnishings and the first $150,000 of the estate. If the estate is more than $150,000 then the remainder will be split; one half to the children, and one half to you.
  • ºIf you and your spouse had children together than you shall receive the household furnishings and the first $300,000 of the estate. If the estate is more than $300,000 then the remainder will be split; one half to the children, and one half to you.

What happens if my parent who is unmarried but has lived in a long term marriage like relationship dies without a will?


If your parent has lived with his or her partner for at least the two years immediately before his or her death in a marriage like relationship then he or she will be considered a spouse.

If your parent dies without a will, his spouse will get the household furnishings and the first $150,000 after the payment of debts. The remainder of the estate is split with one half going to you and any other of the deceased’s children, and one half going to your parent’s spouse.

What is an accounting?


An accounting occurs when the administrator of an estate, or the executor of a will (in either case the “Trustee”) wants the beneficiaries to approve the Trustee’s administration of the estate. Generally, the beneficiary should have enough information from the Trustee to be able to easily ascertain what assets the estate had, how much money was realized on a sale of those assets, what income was earned on that money, and what expenses are being charged to the estate. Often Trustees when they present accounts, will also seek payment of their fees. Beneficiaries are entitled to ask the Trustee questions about the accounts, and to seek changes or clarification. A Trustee is not generally allowed to take its fee without the approval of all the residual beneficiaries. In British Columbia, if Trustees and beneficiaries disagree, on any issue stemming from the accounts, then either the Trustee or a beneficiary can seek a formal passing of accounts before a Registrar of the Supreme Court.

How can I set aside a will?


Setting side a will is very difficult. You must prove that the testator was mentally incompetent, or prove that the testator’s wishes as shown in the will were the product of undue influence, fraud or duress.