How to Apply for Wills Variation

28 Jan 2021 Legal Services

The wills variation process can be extremely stressful, especially if you don’t know where to start. If you are unsure about how to apply for wills variation, consulting with a wills, estates, and trusts lawyer like the ones from Linley Welwood will ensure that you apply within the required time period and that you are fully prepared for the entire process of varying a will.

Find out whether or not a will can be held to be null and void.

Who can Apply for Wills Variation?

A child (natural or adopted) or spouse (including common law partners) of a testator (the person who created the will and is now deceased) who feels that the will did not make a proper provision for their maintenance and support can apply to have the will varied by the court. If the court finds that the testator had a legal or moral obligation to provide for the applicant and the applicant can prove that he or she was not adequately provided for, the court may choose to vary the will.

When can You Apply for Wills Variation?

While a range of different factors will play a role in whether or not a will can be altered, a reputable lawyer will work closely with you to determine if you have a case to pursue having a will varied. Some items that a wills variation lawyer will take into consideration when helping determine if there are valid grounds for applying for wills variation include:

  • The relationship between the child or spouse and the testator
  • Any promises that the testator made
  • Any misconduct of the child or spouse
  • The type of support provided during an individual’s life
  • The size of the estate
  • The needs of the child or spouse
  • The intentions of the testator

It is important to note that a wills variation claim has to be filed within 180 days from the date of the issue of probate of the will. In most cases, if a wills variation claim is filed after this time period has lapsed, it will be considered statute barred, meaning that legal action to vary the will is lost; however, in certain circumstances, a court may choose to extend the time limitation.

Applying for Wills Variation

Before applying to have a will altered by the court, you will need to:

  • Gather the evidence or information you have to support your claim
  • Hire a lawyer who is familiar with wills variation restrictions and limitations
  • File the claim with the court
  • Provide a copy of the initiating petition to the executor of the will within the 180-day time period, unless granted additional time by the court
  • Provide a copy of the petition to the Public Guardian and Trustee for any of the testator’s minor children or any mentally incapable children or spouse

If you would like to learn more about how to apply for wills variation, or if you are interested in their legal services for wills, estates, and trusts, please contact Linley Welwood at 604-850-6640 or by filling out a contact form on their website.