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Old 12-01-2010, 09:32 AM   #40
onetwo_threefour
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Originally Posted by troutman View Post
Not necessarily - wills variation claims are statutory at the roots. Judges are interpreting laws enacted by the Provincial Governments.

Compare the BC Law to the Alberta Law (noted above). The Alberta law specifically considers the character and conduct of the dependant. BC case law has probably listed relevant factors.:

http://www.bclaws.ca/EPLibraries/bcl...de/00_96490_01

Maintenance from estate

2 Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the testator's spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator's estate for the spouse or children.

Evidence

5 (1) In an action under section 2 the court may accept the evidence it considers proper of the testator's reasons, so far as ascertainable,
(a) for making the dispositions made in the will, or
(b) for not making adequate provision for the spouse or children,
including any written statement signed by the testator.
(2) In estimating the weight to be given to a statement referred to in subsection (1), the court must have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement.
Of course the interesting difference between the BC statute and the Alberta is the distinction between "spouse or children" (BC) and "dependants" (Alberta). Depending on whether children as defined in BC includes adult children, this could actually justify the ruling if the father's will didn't provide adequate support for his adult daughters. I wouldn't have thought there would be that much difference between the two provinces, but I might have been wrong about an appeal. I have no intention of researching the question, but it's an interesting distinction in the language between the provinces.
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