358 THE ADVOCATE
VOL. 80 PART 3 MAY 2022
When WESA came into force in 2014, it consolidated and repealed the
Estate Administration Act,4 the Probate Recognition Act,5 the Wills Act6 and the
Wills Variation Act.7 Although this was a considerable legislative undertaking,
the wills variation scheme was brought forward with only minor
changes. Notably, the legislation did not incorporate an anti-avoidance provision
to deter will-makers from intentionally divesting their estates of
assets in order to avoid potential wills variation claims.
Apart from restrictions on the ability of will-makers to contract out of
s. 60 of WESA or to stipulate that a gift to a beneficiary will fail, should that
beneficiary commence a wills variation claim,8 there are no specific limitations
on estate planning strategies that seek to avoid wills variation claims.
Such planning has even been upheld despite being arguably contrary to the
spirit of the legislation. To address the potentially unconscionable situation
of meritorious will variation claimants being denied access to estate assets,
litigators have sought to use various causes of action and equitable remedies,
including the Fraudulent Conveyance Act (“FCA”),9 undue influence
and public policy. Disappointed claimants and their counsel have crafted
creative claims seeking to correct or even prevent a situation where a willmaker
intentionally avoids the wills variation legislation.10 To date, however,
these mechanisms have been met with limited success.
The lack of a statutory anti-avoidance provision can create the unjust situation
of a “right without a remedy” for those who have a meritorious variation
claim. As only assets forming part of a will-maker’s estate are available
to satisfy a wills variation claim, surviving spouses or children with meritorious
claims are effectively denied any recourse through their statutory
right under s. 60 of WESA where will-makers structure their affairs so that
all of their assets pass outside their estate. This article therefore seeks to
bring awareness to the potential use of the substantive “good conscience”
constructive trust to address such injustice in appropriate circumstances.
Part one of this article outlines the wills variation legislation in British
Columbia and the unsuccessful efforts to incorporate anti-avoidance provisions.
Part two traces the historical development of the constructive trust
and the emergence of the concept of good conscience as its unifying principle.
Part three argues that estate litigators should invoke the concept of good
conscience constructive trust to address the situation of certain meritorious
wills variation claimants whose remedy is deliberately rendered moot.
“A RIGHT WITHOUT A REMEDY”: AVOIDANCE OF WILLS VARIATION
LEGISLATION IN BRITISH COLUMBIA
The history of dependants’ relief legislation was recounted by the Supreme