Who Can Apply to Vary a Will?

Individuals eligible to apply to vary a Will are the testator’s spouse together with the biological children and legally adopted children

Under WESA, the individuals eligible to apply to vary a Will are the testator’s spouse together with the biological children and legally adopted children of the testators. Stepchildren are not eligible nor are other relatives such as grandchildren.

Legal adoption means exactly that. There must be paperwork to establish that the testator adopted the child. Simply moving in with the testator as a young child and living as if that person is your mother or father is not enough.

Just because the testator had mentioned that you were going to get something under the Will and it turns out that the testator did not carry through with the promises is not enough to become eligible to vary the Will. As an example, if you are a grandchild and your grandparent consistently said you would get something in the Will there is absolutely no recourse for you in the event that the grandparent changed his/her mind and disinherited you.

You do not have to be married to the testator to be eligible as a spouse but rather, if you are a common-law spouse or a same-sex partner, you may be eligible if you had been cohabitating with the testator for at least two years in a marriage-like relationship.

Under WESA, two persons cease being spouses of each other if in the case of a marriage-like relationship, one or both persons terminate the relationship. For the purposes of WESA, spouses are not considered to have separated if, within one year of separation, they begin to live together again and the primary purpose for doing so is to reconcile, and they continue to live together for one or more periods, totaling at least 90 days.

Even if you are not eligible to apply for a variation under the WESA, there are other options to contest the Will such as a claim for unjust enrichment or constructive trust. Also, the validity of the Will can be challenged. These topics are discussed elsewhere in these materials.

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