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Wills Variation and the Blended Family: Who Wins, Who Loses?

Claims by opposing members of blended families are among the most common estate disputes of modern times. Relatively few contemporary cases involve disputes solely among members of a single immediate family. Various writers have observed that no discernible trends have emerged since the Supreme Court of Canada’s landmark wills variation decision in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807; [1994] S.C.J. No. 65. For the reasons noted below, I do not concur with this view.

Counsel are often confronted with claims on behalf of surviving children who believe strongly that they are entitled to the lion’s share of the deceased’s estate. This entitlement is felt to arise from such factors as: the length of the original marriage relative to the most recent; the contribution to the current estate by the children’s first-deceased parent; and the financial wherewithal of the surviving spouse.

The purpose of this paper is to demonstrate that, with the exception of cases in which the testator and spouse had entered into a pre-nuptial agreement, where the Wills Variation Act is invoked the surviving spouse is most likely to come out well ahead of the testator’s original dependent children. In my view, it is important for estate counsel to appreciate this reality in assessing the relative merits of their clients’ potential claims, and for wills counsel to advise clients having regard to this reality.

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