I was counsel for the plaintiffs in both the WESA case Brown v Pearce Estate 2014 BCSC 1402 which relied upon the law as set out in detail in McBride v Voth estate 2010 BCSC 443 in which I was also counsel, and both cases explain the law of wills variation now S 60 WESA, very well.
S. 60 applications to vary a will of the deceased for being inadequate and unfair can only be brought by a spouse, by same sex and common law and married, and a child of the deceased, natural or adopted but not a step child.
THE LAW:
The WVA was repealed in March 31, 2014 and replaced by the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”). The transition provisions of WESA (s. 185) provide that Part 6 [estate administration, including variation of the will] “apply in respect of deaths occurring on or after the date on which those Parts come into force”. Hence it is the WVA which applies to this claim. In any event, the relevant provisions in the WVA and WESA are the same.
[132] In McBride v. McBride Estate, 2010 BCSC 443, Madam Justice Ballance provided a very comprehensive and erudite analysis of the law pertaining to wills variation which I recite and adopt in its entirety:
Legal Framework
119 The heart of the Act is found in s. 2. It provides that if, in the court’s opinion, a will fails to make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court is empowered, in its discretion, to vary the will to make provision that it considers adequate, just and equitable in the circumstances.
120 The Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 [Tataryn], continues to be the seminal case and the governing authority in British Columbia on wills variation. To fully appreciate the importance of Tataryn, it is useful to understand the jurisprudential context in which it was decided. While I do not propose to summarize the pre-Tataryn case law (and it is, I think, crucial to approach the jurisprudence based on whether it came before or after Tataryn), the Supreme Court of Canada decision of Walker v. McDermott, [1931] S.C.R. 94 [Walker] warrants particular mention.
121 The central issue for the Court in Walker was whether the adult independent daughter had to demonstrate financial need of support in order to obtain judicial variation of her father’s will. The majority of the Court turned away from a financial needs-based approach. In his often-quoted passage, Duff J., speaking for the majority, endorsed a broad interpretation of the scope of “proper maintenance and support”, one which encompasses the notion that a testator shoulders a moral obligation as a spouse and parent (at p. 96):
What constitutes “proper maintenance and support” is a question to be determined with reference to a variety of circumstances. It cannot be limited to the bare necessities of existence. For the purpose of arriving at a conclusion, the court on whom devolves the responsibility of giving effect to the statute, would naturally proceed from the point of view of the judicious father of a family seeking to discharge both his marital and his parental duty; and would of course (looking at the matter from that point of view) consider the situation of the child, wife or husband, and the standard of living to which, having regard to this and the other circumstances, reference ought to be had. If the court comes to the decision that adequate provision has not been made, then the court must consider what provision would be not only adequate, but just and equitable also; and in exercising its judgment upon this, the pecuniary magnitude of the estate, and the situation of others having claims upon the testator, must be taken into account.
122 Judicial reception of Walker was divided. Over time, two competing lines of authority emerged: those maintaining that demonstration of a claimant’s economic need was a prerequisite to relief, and those that were true to the Walker analysis.
123 The Tataryn Court was cognizant of the lack of judicial uniformity in the approach to the statute and of the expressed criticism that the law was in disarray and promoted unpredictable trial outcomes based on the “length of the Chancellor’s foot”. (See Leopold Amighetti, The Law of Dependents’ Relief in British Columbia (Toronto: Carswell, 1991), at p. 56.) Tataryn did not introduce the moral obligation consideration into the analysis of whether provision consistent with the Act had been made. The Tataryn Court simply affirmed its earlier decision in Walker and laid to rest any lingering legitimacy of a needs-based model.
124 In Tataryn, McLachlin J. (now the C.J.C.), writing for the Court, went some distance to clarify the moral duty concept and the interplay between it and a judicious testator’s spousal and parental legal duties in light of contemporary standards. Her articulation of the relevant considerations and the principles underpinning the Act has been reiterated in virtually every case decided thereafter. Her Ladyship powerfully summarized the application of the Act by observing that “the search is for contemporary justice” (p. 815).
125 McLachlin J. identified the two fundamental interests protected by the Act. The main statutory objective is the adequate, just, and equitable provision for a testator’s spouse and children. The other protected interest is the testator’s testamentary autonomy. Of necessity, testamentary freedom is subordinate to the main objective of the Act. This is because a testator is only permitted to be unconstrained in his or her testamentary dispositions so long as adequate provision has been made to the narrow class protected by the Act. The conceptual essence of the Act is to permit judicial interference of testamentary freedom where a testator’s spouse or child has not been left adequate provision. Testamentary freedom must therefore yield to the extent required to achieve adequate, just and equitable provision for the applicant spouse and/or children. In that sense and to that degree only, testamentary autonomy will be curtailed by the application of the Act.
126 The Tataryn Court held that the determination of whether adequate provision has been made and, if not, the provision to be substituted by the court to achieve an adequate, just and equitable distribution are “two sides of the same coin” (p. 814).
127 The basic approach formulated in Tataryn to address the adequacy of the testamentary provision can be summarized as follows:
In the pre-Tataryn benchmark case of Price v. Lypchuk (1987), 11 B.C.L.R. (2d) 371, 26 E.T.R. 259 (C.A.) [Price], the Court of Appeal clarified that because societal circumstances change, the judicious spouse/parent of the Walker decision must be assessed in accordance with a contemporary view of marital and parental obligations, and of testamentary autonomy. McLachlin J. affirmed that proposition. The question of whether a testator has acted as a judicious parent or spouse in relation to the provision under the will is measured by an objective standard, assessed in light of current societal legal norms and current societal moral norms.
Legal Norms
Legal norms are the obligations that would be imposed upon the testator during his or her life if the question of provision for the claimant spouse or child were to arise. In the words of McLachlin J., a testator’s legal responsibilities while alive “reflect a clear and unequivocal social expectation, expressed through society’s elected representatives and the judicial doctrine of its courts” (p. 821). Pursuant to Tataryn, a testator’s legal obligations, had he or she not died, arising under the Family Relations Act, the Divorce Act, and the law of constructive trust are relevant factors in the assessment of the testator’s legal obligations for the purposes of the Act. McLachlin J. acknowledged that a testator’s legal obligations may extend to dependent children and left open the prospect that an independent adult child might have a legal claim against a parent based on unjust enrichment (p. 822). While McLachlin J. recognized that the legal obligations that contemporary society imposes on living testators vis-à-vis their spouses and children are not necessarily parallel to those on death, she regarded them to be an important indication of the nature of the legal duty in death (p. 822).
Moral Norms
McLachlin J. indicated that a testator’s moral duties are found in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (p. 821). She acknowledged that because there is no clear legal standard to assess moral duties, obligations falling under that rubric are more susceptible to being differently interpreted by different individuals (p. 822).
The position under the Act of a testator’s self-sufficient adult child has been controversial since the inception of the statute. In directing her mind to the moral claims of such children, McLachlin J. noted that while they may be more tenuous than that of a spouse or dependent child, the jurisprudence suggests that where the size of the estate permits, some provision for such children should be made, unless there are circumstances that would negate such an obligation (p. 822).
Tataryn recognized that there is no single way for a testator to divide the estate in order to discharge the legal and moral duties. In this regard, McLachlin J. reminded that it is only where the testator has chosen an option which falls below his or her obligation defined by reference to the contemporary sense of legal and moral norms, that a court will make an order “which achieves the justice the testator failed to achieve” (p. 824).
Balancing the Claims
Tataryn held that all legal and moral claims should be satisfied where the magnitude of the estate permits. If that is not possible, the court must prioritize the competing claims. Claims that would have been recognized as legal obligations during a testator’s lifetime should “generally take precedence” over moral claims (p. 823). The court must also weigh the competing moral claims and rank them according to their strength. Where the estate assets permit, as part of the assessment of a testator’s moral duty the court must take into account the testator’s legitimate testamentary concerns for the protection of beneficiaries and future generations and the carrying out of social purposes which may go beyond providing for the surviving spouse and children (p. 823).
128 In Tataryn, the Court clarified that because they are “two sides of the same coin”, the factors taken into account to determine whether a testator has made adequate provision are also relevant to the determination of what would constitute adequate, just and equitable provision in the particular circumstances. A number of years ago, this Court identified circumstances that might support or negate a testator’s moral duty to recognize the claim of an adult child in the decision of Clucas v. Clucas Estate, 25 E.T.R. (2d) 175, [1999] B.C.J. No. 436 (S.C.). I would supplement that helpful summary with the following overview of six of the considerations that inform the existence and the strength of a testator’s moral duty to independent children. Although many of these factors were developed before Tataryn, for the most part they maintain relevance for the post-Tataryn court.
1. Contribution and expectation
129 Contributions by the claimant to the accumulation of a testator’s assets with little in exchange, or providing other types of contribution or care to a testator will generally serve to strengthen the moral obligation, other things being equal. The contribution may also found a legal claim in unjust enrichment or quantum meruit: Tataryn; Re Sleno 78 D.L.R. (3d) 155, [1977] B.C.J. No. 140 (S.C.); Lee v. King Estate, [1975] B.C.J. No. 893 (S.C.); Harris v. Harris, [1980] B.C.J. No. 1417 (S.C.); Ryan v. Delahaye Estate, 2003 BCSC 1081, 2 E.T.R. (3d) 107 [Ryan]. Contributions made by a first spouse who predeceased the testator may support a moral obligation to the adult claimant children of that first marriage: Saugestad v. Saugestad, 2008 BCCA 38, 77 B.C.L.R. (4th) 170; Waldman v. Blumes, 2009 BCSC 1012, 51 E.T.R. (3d) 253.
130 A moral duty may arise where the testator’s conduct has created a bona fide expectation on the part of the plaintiff to receive a benefit which does not come about on death: Marsh v. Marsh Estate 19 E.T.R. (2d) 184, [1997] B.C.J. No. 1286 (S.C.); More v. More Estate, 2002 BCSC 920, 46 E.T.R. (2d) 96.
2. Misconduct/Poor character
131 Section 6(b) of the Act empowers the court to refuse variation to a person whose character or conduct, in the opinion of the court, disentitles him or her to relief. Such misconduct is measured as at the date of death, not subsequently, and must be directed at the testator. Generally speaking, the conduct must be relatively severe in order to justify disinheritance: Gieni v. Richardson Estate, [1995] B.C.J. No. 1227 (S.C.); Sammon v. Stabbler, 2000 BCSC 1048, 77 B.C.L.R. (3d) 283. A child who is a disappointment overall (Sawchuk v. MacKenzie Estate, 2000 BCCA 10), is an “incompetent weakling” (Re Bailey Estate, [1972] 1 W.W.R. 99, 1971 CarswellBC 195 (S.C.)), or is unsuccessful in multiple business ventures and has a difficult time “fighting the battle of life” (Re Radcliffe, 2 B.C.L.R. 220, [1977] B.C.J. No. 1036 (S.C.)) was not considered to be sufficiently defective.
3. Estrangement/Neglect
132 In the early development of the caselaw, a long period of separation, abandonment or estrangement between a child and testator was frequently, though not invariably, taken to militate against finding a moral duty to an adult child. The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children: Gray v. Gray Estate, 2002 BCCA 94, 98 B.C.L.R. (3d) 389, Doucette v. Clarke, 2007 BCSC 1021, 35 E.T.R. (3d) 98 [Doucette]; Tomlyn v. Kennedy, 2008 BCSC 331, 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53, 21 E.T.R. (3d) 285; P.S.G. v G.G. Estate, 2005 BCSC 1855; Ryan.
4. Gifts and benefits made by the testator during lifetime
133 Depending on the circumstances, a testator’s moral duty may be diminished or negated entirely where he or she has made inter vivos gifts to the claimant, or the claimant has received assets on the testator’s death outside the framework of the will. This includes benefits conferred by way of an inter vivos trust, outright gift and assets passing on death by operation of law such as joint tenancies, and by way of specific beneficiary designation of insurance proceeds, RRSPs, pension benefits, RIFs, and the like. On the same reasoning, if a testator has made pre-death gifts to individuals other than the plaintiff, or has arranged his or her affairs to facilitate a passing of assets to such individuals outside the provisions of the will, the moral duty owed to the plaintiff may be intensified. See generally: Ryan; Higgins v. Wojciechowski Estate, [1992] B.C.J. No. 1398 (S.C.); Inch v. Battie, 2007 BCSC 1249, 36 E.T.R (3d) 79 [Inch].
5. Unequal treatment of children
134 That an independent child has not been given the same provision under a will as the testator’s other child or children will not, of itself, necessarily establish a moral claim: Re Lukie et al and Helgason et al., 72 D.L.R. (3d) 395, [1976] B.C.J. No. 1393 (C.A.); Price. On the other hand, in Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76, 6 E.T.R. (2d) 1 (C.A.), the Court of Appeal held that equal treatment among independent adult children is prima facie fair from a moral duty standpoint. In Ryan, the court held that in the absence of relevant reasons for an unequal distribution, there is a reasonable expectation that adult children will share equally, even though no legal obligation requiring equal distribution exists. (para. 67). The emerging rule of thumb to the effect that equal apportionment among children prima facie discharges a testator’s moral duty was applied in Inch. There, the court held that an equal distribution was prima facie fair, despite the fact that one child received significant assets by way of inter vivos transfers. The proposition was recently revisited by the Court of Appeal in Doucette. In that case, the Court of Appeal appeared to have no difficulty with the disinheritance of one of the preferred beneficiaries by allocating her nothing out of the estate in light of the generous gifts that she had received outside the will via jointly held assets.
6. Testator’s reasons for disinheritance/Subordinate benefit
135 The approach to be taken by the court in relation to a testator’s reasons for disinheriting or providing a modest benefit only to a child starts with consideration of the Court of Appeal decision in Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213, 48 E.T.R. 209 (C.A.) [Bell]. In Bell, the testator left a will under which she bequeathed a small gift to one adult son, nothing to her adult daughter, and left the lion’s share of her estate to her other adult son. Contemporaneously with making her will, the testator wrote a separate letter purporting to explain the unequal treatment of her children, and in particular the disinheritance of her daughter. The trial judge concluded that the reasons offered by the testator for disinheriting her daughter were accurate and sufficient to support the will. Accordingly, variation of the will was refused. The Court of Appeal’s dismissal of the daughter’s appeal came before the Supreme Court of Canada issued its decision in Tataryn.
136 In his analysis in Bell, Goldie J.A., for the Court, placed heavy reliance on the post-Walker legislative amendments to the Act enacted in 1971 (now s. 5), which permit the court to accept evidence of the testator’s ascertainable reasons for making or not making the dispositions in the will relative to his or her spouse and children. That section stipulates that where such evidence is in the form of a written statement signed by the testator as in Bell, the court, in weighing the statement, must have regard to all of the circumstances which may reasonably support an inference about the accuracy or otherwise of it.
137 In addressing those statutory amendments, Goldie J.A. stated, at para. 38:
38 … the weight to be given evidence of the testator’s reasons is affected by its accuracy and not by morally acceptable or unacceptable content. I do not say the legislature swept away any objectively determined moral duty. I do say, however, that the actual intentions of the testator are to be given an effect which is largely denied by reliance upon the notionally objective reasonable testator.
138 In Bell, the Court of Appeal held that where financial need is not a factor, if the court finds that the testator’s reasons purporting to explain a disinheritance are valid and rational, the testator’s moral duty in respect of that child is negated. The Court held that the burden then shifts to the plaintiff to show that the reasons acted upon by his or her parent were false or unwarranted.
139 Goldie J.A. acknowledged that this approach placed greater emphasis on a testator’s intentions and “less on those which might be imputed to her by reference to the reasonable testator” (para. 36). He endorsed giving effect to a testator’s subjective rationale which would be “largely denied” by employing an objective reasonable testator standard.
140 The Court of Appeal reaffirmed the Bell model after Tataryn was decided at the Supreme Court level. In Kelly v. Baker (1996), 82 B.C.A.C. 150, 15 E.T.R. (2d) 219 (C.A.) [Kelly], the Court of Appeal applied the Bell analysis and concluded that the testator had valid and rational reasons for disinheriting the claimant. As to the content of the reasons, Kelly stated that the testator’s reasons for disinheriting a child need not be justifiable. The Court observed that the law merely requires that the reasons are valid, meaning based on fact, and rational in the sense that there is a logical connection between them and the act of disinheritance (para. 58).
141 One cannot quarrel with the outcomes in Bell and Kelly in light of their particular facts. The thorny issue is that the model of inquiry endorsed by Bell and followed in Kelly effectively precludes an assessment of whether the testator’s reasons are objectively justifiable from the standpoint of the contemporary judicious parent of Tataryn. In Tataryn, McLachlin J. made passing mention of Bell as an example of a case where a testator’s moral duty was seen to be negated. Notably, she did not say nor delve into whether the proposition espoused by Goldie J.A. to negate that moral duty was sound. If the decisions of Bell and Kelly mean that the applicable test is whether a testator has valid (i.e. factually true) and rational (i.e. logically connected to the disinheritance) reasons for disinheriting a child, even where the reasons are unworthy of an objectively judicious parent based on contemporary standards, then they are difficult to reconcile with the fundamental precepts of Tataryn and the search for contemporary justice in the circumstances.
142 For the most part, the apparent incompatibility between Bell and Kelly on the one hand, and Tataryn on the other, has not been squarely confronted by this Court (an exception is found in Hammond v. Hammond (1995), 7 B.C.L.R. (3d) 25, 7 E.T.R. (2d) 280 (S.C.)). I would respectfully observe that there appears to be a growing trend in the authorities decided in the aftermath of Kelly to favour rejection of objectively insufficient reasons on the pretence that they are simply not rational.
[133] The Court of Appeal also recently discussed the law pertaining to wills variation litigation in Hall v. Hall Estate, 2011 BCCA 354 as follows:
37 An application under s. 2 is thus a two-stage process. First, the court must determine whether adequate provision has been made for the proper maintenance and support of the applicant. If not, at the second stage the court must consider what provision for the applicant would be adequate, just and equitable.
38 The Supreme Court of Canada set out the principles that guide this analysis in Tataryn v. Tataryn, [1994] 2 S.C.R. 807. McLachlin J., writing for the Court, observed that s. 2 gives the court broad discretion in advancing two interests protected by the Act. The first is ensuring adequate, just and equitable provision for a testator’s spouse and children. The second is testamentary autonomy. If the second must yield to the first, the ultimate question is “what is adequate, just and equitable in the circumstances judged by contemporary standards”. In answering that question, the court will be guided by two sets of norms. The first are the testator’s legal obligations to his or her family. The second are the moral obligations to family members that arise from reasonable expectations of what a judicious person would do in the circumstances. Claims based on legal obligations will generally take precedence over those based solely on moral duties. The testator’s “legitimate concerns” should be recognized in assessing the extent of any moral obligations. Finally, there will be a wide range of appropriate options in judging whether the testator’s dispositions meet the requirements of the Act, and one’s freedom to dispose of one’s estate should be treated with deference as long as the options chosen fall within that range.
39 With specific reference to the claims of adult independent children, the Court stated a testator will not generally have a legal duty to an adult independent child unless the child contributed to the estate. As to moral obligations toward adult children, these are tenuous, but may justify entitlement if the size of the estate is adequate and the circumstances do not negate such an obligation.
[134] In the same case, the Court of Appeal made other observations as to the law which are also relevant to the present dispute, namely:
- succeed in challenging the will, the plaintiff must establish that the testator’s reasons (for disinheritance or for only a very modest bequest), and insofar as those reasons can be ascertained, were false or unwarranted … “it is not necessary to find the reasons were justifiable. It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance” (para. 43);
- the relevant date to determine whether a testator made adequate provision for the proper maintenance and support of the plaintiff under the first step in the two-step analysis is the date of the testator’s death (para. 46);
- because “family histories and dynamics are critical” to the assessment of testamentary provisions made, or not made, for adult independent children, and because such histories and dynamics “vary widely and are often unique”, each case must be decided on its own facts and other cases dealing with such assessments will not usually be helpful (para. 44).
