The spouse and children must be involved in the litigation even if they do not want to participate
In British Columbia, if a will-maker dies leaving a Will that does not, in the Court’s opinion, make adequate provisions for the maintenance and support of his/her spouse and/or children, the Court may order that the Will be varied in such a way to ensure that the spouse and/or children are fairly compensated from the will-maker’s estate.
If you intend to dispute a Will on the basis that it does not provide proper support for a spouse and/or child, there are procedural requirements that must be followed in order to begin a legal action. When starting a lawsuit to vary a Will, the following individuals must be included in the legal proceedings:
- The surviving spouse of the will-maker;
- All the children of the will-maker;
- All the beneficiaries under the Will whose interest may be affected by the potential variation of the Will; and
- The executor of the Will.
In other words, the spouse and children must be involved in the litigation even if they do not want to participate. All beneficiaries named under the will who will be receiving gifts or money from the deceased’s estate must be added to the lawsuit as defendants if their rights under the Will might be impacted. Further, the executor named in will must be named as a defendant.
The legislature, in implementing these rules, was trying to ensure that any potential interested party would be fully aware of the lawsuit by ensuring that every potentially interested party is named in the lawsuit. This rule avoids the situation where a potentially interested party receives no notice of the estate litigation.
The unintended consequences of the rule are that the claimant pursuing a wills variation claim may have to sue one of his/her allies as a defendant in the lawsuit. One solution to avoid the need to alienate an ally is to simply concede in the lawsuit that you are not seeking to vary the Will as it relates to the individual in question.
In summary, whenever you start a will variation claim anyone and everyone that can potentially be impacted by the will has to be a party to the lawsuit.
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