If the testator’s spouse or child brings a claim before the Court to vary the testator’s will, Section 5 of the Wills Variation Act permits the Court to consider the testator’s reasons for making his/her dispositions in the will.
Although the reasons do not have to be set out in writing, it is helpful if the testator makes the written reasons at the same time the will is made, and then signs and dates the reasons, and leaves the reasons in a safe place where they can be found if a wills variation claim is made. The reasons could be included in the Will.
However, if the reasons are lengthy or embarrassing to the testator and the testator’s family, it is often prudent to keep the written reasons in a sealed envelope, where the executor can access them and use them if, and only if, a wills variation claim is made. If the reasons are not contained in the will, the potential claimant may not feel the need to bring a claim to “clear her name” and disprove allegations in the will.
Wills Variation Act reasons can be very helpful to the Court in understanding the motivation and intentions of the testator in dividing up the estate. If the Court is satisfied that the testator’s reasons are valid and true, and logically connected to the resulting distribution, then the onus will shift to the claimant to establish that, despite the testator’s personal beliefs and values, current societal norms in British Columbia require the Court to vary the will. If the Court finds that the reasons are valid and rational, it will often uphold the will and dismiss the wills variation claim. See for example Martinson, 2009 BCSC 1104, Gould, 2010 BCCA 424 and Hall v. Hall, 2011 BCCA 354. If the Court finds that the reasons are irrational and invalid, their existence can be worse than no reasons at all. If a claimant can show that the testator’s reasons are false, exaggerated, or not in keeping with current societal norms, then the Court may sympathize with the claimant, who had to deal with the unreasonable testator during his/her lifetime. See for example, Schipper, 2010 BCSC 1067, Werbenuk, 2010 BCSC 1678.
If there is potential for a wills variation claim, creating and preserving carefully written, factually correct, and well reasoned reasons could save the estate legal costs in defending a claim, and can save the intended beneficiaries of the estate a great deal of uncertainty and stress as well. Alternatively, false reasons, exaggerated reasons, reasons that do not reflect current societal norms, or reasons that don’t bear any logical connection to the resulting distribution are not worth the paper they are written on, and may provoke and support a disappointed beneficiary’s claim.
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