Mr. Attorney – Don’t Change the Wills Variation Act

The Wills Variation Act was written in approximately 2007 after the government of British Columbia the year prior announced that they intended to make slipping changes to wills and succession legislation in British Columbia. The overriding change was to change the Wills Variation Act provision so that adult independent children could no longer contest the will in British Columbia if they were inadequately provided for. The overriding reasoning for this change was that it would now bring British Columbia into more accord with the law of the rest of Canada.

My wife Judith Milliken and I led the fight against these proposed changes. I travel to various bar meetings. We wrote letters, and Judith in particular wrote this article and mailed it to the attorney general and republished it. It is a compelling story as to why the Wills Variation Act should not have been changed and I’m pleased to say that at the end of the day, we won. The government of British Columbia backed down and are not changing that provision of the Wills Variation Act.

Wills Variation: 84 Year Old Second Spouse With Dementia

Wills Variation: 84 Year Old Second Spouse With Dementia

Philp v.  Philp Estate 2017 BCSC 625 in a wills variation claim awarded an 84 year old second spouse with dementia $300,ooo from an estate of $660,000 after a 35 year marriage.

The widower was a retired doctor who had contributed substantial sums of his money to his spouses horses breeding hobby farm throughout their marriage. He had approximately $600,000 of his own assets at the time of his wife’s death.

The plaintiff was severely demented and was living in a care facility at a cost of $7000 per month.

His wife had left him a life estate in her hobby farm that she had been given after her divorce from her first husband.

The court held that the wife had satisfied her legal obligation to her husband as per the leading case of Tataryn v Tataryn 1994 SCR 807, but she had failed to satisfy her moral obligation to provide for his maintenance and awarded him $300,000.

His claim was opposed by her 5 children from a first marriage.

The Moral Obligation

[56]        Summarizing the decision in Tataryn, Ballance J. made the following comments in Dunsdon v. Dunsdon, 2012 BCSC 1274 (CanLII) at para. 133:

[133]   All legal and moral claims should be satisfied where the magnitude of the estate permits. In cases where complete satisfaction of all claims is not possible, the competing claims are to be prioritized. Claims that would have been recognized as legal obligations during a testator’s lifetime should generally take precedence over moral claims:  Tataryn, at 823. The court must also weigh the competing moral claims and rank them according to their strength. While claims of independent adult children may be more tenuous than those of a spouse or dependent child, where the size of the estate permits, some provision should be made for them unless the circumstances negate such an obligation:  Tataryn, at 822 – 823.

[57]        In balancing the conflicting claims, the Court in Tataryn noted one should take into account the important changes consequent upon the death of the will-maker. As there is no longer a need to provide for the will-maker, the reasonable expectations may differ following a death than in a separation:  at 823.

[58]        The relevant time for determining whether the will-maker has made adequate provision for a spouse or child is at the date of his or her death — 2013 in this case.

[59]        The court may consider the circumstances of the plaintiff, including any reasonably foreseeable changes in the circumstances, as at the date of death, when determining whether adequate provision has been made.

[90]        Turning to the issue of her moral obligations, I note the comment in Bridger v. Bridger Estate, 2006 BCCA 230 (CanLII) at para. 20:

[20] … Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults. …

[91]        As set out in Eckford v. Vanderwood, 2014 BCCA 261 (CanLII) at para. 56, Dr. Philp’s deteriorating health, i.e. dementia, is not relevant to whether Mrs. Philp made adequate provision for him in her will; rather, only those circumstances existing or reasonably foreseeable at the time of the death of the will-maker are relevant. Evidence of cognitive decline “in or about the fall of 2014” was noticed by Ms. Isaak in her affidavit. This, however, was over a year after Mrs. Philp’s death, and therefore I find his condition was not reasonably foreseeable.

[92]        Kish noted at para. 60, the “claims of adult children do not and should not overshadow a testator’s moral duty to a spouse”, especially where the relationship is long. I agree with Saugestad at para. 123, that it is particularly difficult to assess cases where the deceased and surviving spouse have independent adult children from their first marriages.

[93]        Kish also noted at para. 61, however, that as set out in Tataryn, “testator autonomy is one of the two interests ‘protected’ by the WVA.” In this case the defendants argue that testator autonomy reflects Mrs. Philp’s clear attachment to the farm and her wish that it should devolve to her children.

“Adopted Out” Child Cannot Contest Biological Parent’s Estate Under Wills Variation

"Adopted Out" Child Cannot Contest Biological Parent's Estate Under Wills Variation

Boer v Mikaloff Estate 2017 BCSC 21 confirmed that an “adopted out” child cannot contest the will of the biological parent’s estate under S.60 WESA (the wills variation provision) when it answered the following posed question negatively:

Does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act, S.B.C. 2009, c. 13?

4      For the reasons that follow, the answer to the question is no. The plaintiff’s claim will be dismissed.

RELEVANT STATUTORY PROVISIONS

6      The relevant statutory provisions are ss. 37(1) and (5) of the Adoption Act, R.S.B.C. 1996, c. 5, the definition of “enactment” in s. 1 of the Interpretation Act, R.S.B.C. 1996, c. 238 and s. 3 and s. 60 of WESA.

7      Subsections 37(1) and (5) of the Adoption Act read:

37 (1) When an adoption order is made,

(a) the child becomes the child of the adoptive parent,

(b) the adoptive parent becomes the parent of the child, and

(c) the parents cease to have any parental rights or obligations with respect to the child, except a parent who remains under subsection (2) a parent jointly with the adoptive parent.

. . .

(5) The family relationships of one person to another are to be determined in accordance with this section, unless this or another enactment specifically otherwise provides or distinguishes between persons related by birth and persons related by adoption.

8      Section 1 of the Interpretation Act defines “enactment”:

In this Act, or in an enactment: . . .

“enactment” means an Act or a regulation or a portion of an Act or regulation;

9      Sections 3 and 60 of WESA read:

3 (0.1) In this section, “pre-adoption parent” means a person who, before the adoption of a child, was the child’s parent.

(1) Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

(2) Subject to subsection (3), if a child is adopted,

(a) the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent, and

(b) a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.

(3) Adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession under this Act.

ANALYSIS

17      Section 60 of WESA requires a will-maker to make adequate provision for the proper maintenance and support for the will-maker’s spouse and children that is adequate, just and equitable in the circumstances.

18      A “will-maker” is defined as “a person who makes a will”: s.1 of WESA.

19      A “spouse” is specifically defined for the purposes of WESA: ss. 1 and 2.

20      WESA does not define “child” or “children”.

21      Subsection 37(1) of the Adoption Act provides that when an adoption order is made, “the child becomes the child of the adoptive parent” and “the adoptive parent becomes the parent of the child”. Section 1 of the Adoption Act defines a “child” as “an unmarried person under 19 years of age”.

22      Our Court of Appeal in Clayton v. Markolefas, 2002 BCCA 435, addressed whether an adopted child was “issue” of her birth father enabling her to be entitled to a portion of her birth father’s intestate estate. The Court considered in detail, s. 37 of the Adoption Act as it then read. For the purpose of the case at bar, the changes to s. 37 of the Adoption Act at the time of Clayton and now are not significant.

23      Justice Esson (as he then was), stated:

[6] . . . — It will be seen that s. 37(1) [Adoption Act] retains the concept that upon the making of the adoption order the child becomes the child of the adoptive parent and the adoptive parent becomes the parent of that child. It goes on to provide, subject to an exception which has no application here, that the birth parents cease to have any parental rights or obligations with respect to the child.

[7] Section 37(1)(c) is, in my view, all-important in relation to the present issue. Because the birth parents cease to have any parental rights or obligations, it must follow that the child ceases to have any rights against the birth parents other than those defined in s. 37(6), i.e., rights which vested in the child before the date of the adoption order. The existence of s. 37(6) is inconsistent with a legislative intention to allow other rights of the child against the birth parent to survive the adoption order.

[8] Section 37(6) [should read 37(5)] of the new Act, which provides that the family relationships of one person to another are to be determined in accordance with s.37, also has a clear bearing on the present issue. The question whether a person is “issue” of another person is a matter of family relationships. The clear effect of s.37(1) is that the adoptive child becomes the child of the adoptive parent. From that it follows that all parental obligations fall upon the adoptive parents. It can therefore be said of the present provisions, as Seaton J.A. said of s. 11 of the former Act:

The thrust of these provisions is to move the child from one family to another family and make it a child of the new family and no longer a child of the old family.

BC Wills Variation: Executor Added After Expiration of Limitation Date

Executor Added After Expiration of Wills Variation Limitation
 Under the provisions of section 60 WESA, an action under the wills variation provisions must be commenced within 180 days of the grant of probate or the action is statute barred.
In the 1987 decision Cowan v Cowan 17 BCLR ( 2d) 114, the plaintiff commenced an action (by an endorsed writ that existed then but no longer exists), under what was then known as the Wills Variation act, naming the defendant as a beneficiary but failing to name the executor as required by the rules of court.
The court ordered that the executor may be named as a party, despite the fact that the expiration of the limitation period under the wills variation act had expired, holding that the defect amounted only to an irregularity and not a nullity.
The court added the executor as a proper party to the action pursuant to what was then Rule 15(5) (A) (11) and section 4( (1) (A) of the Limitation act, which required that the new party be connected with the subject matter of the original action.
The court found that there was no prejudice to the executor, since he had in fact been served with the cause of action in his capacity as a beneficiary within the 180 day limitation, and the plaintiff had attempted to add the executor as a party in a timely fashion.
The court held that rule 8 (14) meant that all beneficiaries as well as the executor must be named as parties to the proceeding, and where such an individual as an executor is a party to an action in a representative capacity, that capacity should appear in the style of cause. If it is not, then the writ is a regular Raj Kour v Chan (1958) 27 WWR 191 AT 192.

The plaintiff must show that:

1) the person ought to of the named as a party, or b) the parties participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon (Ent.. Realty v  Barnes Lake Cattle  Co. (1979) 13 BCLR 293 ( CA).
The court provided the following reasons for concluding that in these particular circumstances that the executor could be added as a party, despite the fact the   180 day limitation period ( then 6 months)  had expired:

20 (a) by R. 8(14) he must be a party;

21 (b) the Wills Variation Act claim was begun within the six-month period;

22 (c) the executor, while not named, was in fact served with the writ;

23 (d) it is clear from the endorsement that the claim is under the Wills Variation Act — not a personal claim against Mr. Cowan;

24 (e) there can be no prejudice to the defendant/beneficiary or executor in this case. There can be no more difficulty with old witnesses and poor memories than if the executor were named in the original writ;

25 (f) the purpose of limitation period under the Wills Variation Act is to enable the executor to distribute funds without fear of a claim being advanced after six months. In this case the beneficiary/executor was served with the writ within six months and there has been no prejudice in that regard;

26 (g) the position of executor, in a Wills Variation Act claim, is one of neutrality. He is to assist the court: Re McCarthy, [1919] N.Z.L.R. 807 (S.C.); Cookv. Webb, [1918] N.Z.L.R. 664. Thus his addition is not prejudicial;

27 (h) refusing to add the executor would not be in accordance with R. 2(1), which states that failure to comply with the rules (R. 8(14)) should be treated as an irregularity not a nullity.

Wills Variation:Court Rewrites Will

Court Rewrites Man's Will to Include Daughters

court rewrites man's willCourt Rewrites Man’s Will to Include Daughters (Globe and Mail Article)

Son was named as sole beneficiary until judge intervened Where there’s a will, there’s a way to have it overturned.

A B.C. Supreme Court Judge has ordered a man to a split his late father’s estate, despite the fact the patriarch chose to leave his four daughters out of his will.

One of the women said she’s gratified by the court’s decision while her brother is “devastated.”

Such cases are becoming more and more common in B.C., which legal experts say is the most “plaintiff friendly” province in Canada for spouses and children who have been disinherited.

In his ruling, Mr. Justice Randall Wong said the father, William Werbenuk, was “a racist whose will and personality dominated his family.” He said Mr. Werbenuk “resorted to and engaged in harsh and brutal corporal and other punishments.” Mr. Werbenuk, who died in March of 2008 at age 86, also demeaned his daughters and made them wash his feet, said Judge Wong.

Mr. Werbenuk named his son, Randall, the sole beneficiary and executor of his will. His estate was valued at approximately $434,000, although the judge noted that did not include farmland in Saskatchewan or a valuable violin collection. He said the exact value of the remaining assets is still uncertain.

Judge Wong said under the province’s Wills Variation Act, Mr. Werbenuk did not take “contemporary moral standards” into account when he excluded his daughters. The judge said the women attempted to have relationships with their father, despite his harsh treatment, but it was clear he favoured his son.

Patricia Skwarok, one of the Mr. Werbenuk’s daughters, said she is pleased with Monday’s ruling. “It was fair, just and equitable to the family who was in crisis,” she said in an interview.

Ms. Skwarok, a 53-year-old nurse who resides in Penticton, said she wasn’t surprised the judge essentially rewrote her father’s will.

She said wills that allow a parent to leave everything to one person at the expense of others should remain a thing of the past.

“In the 1700s and 1800s that was social standard. It is not [in 2010].”

Charles Albas, lawyer for Ms. Skwarok’s brother, said his client was devastated by the decision.

He says, “I feel like I’ve been kicked in the head’ It’s sad.”

Mr. Albas said he will recommend his client have independent counsel look at the ruling with fresh eyes, but an appeal is unlikely.

“It’s very hard to appeal a case like this because it is based on facts.

“The trier of facts is Justice Wong and, basically, he heard all of the evidence and decided this was a case where a major variation was called for.”

Rick Covell, who represented Ms. Skwarok and two of her sisters, said such court rulings are more common than the public might think. He said there’s been a “steady stream” of Wills Variation Act cases in recent years.

“It’s not that rare because people will occasionally in their will let their prejudices and biases get away with them,” he said.

Keith Sabey, counsel for the fourth woman, said B.C. legislation is the most plaintiff friendly in the country when it comes to such cases.

“The spouses and the children have the law favour then the most in B.C. if they’re trying to challenge the wills, and probably by quite a bit,” he said.

“The B.C. legislation has a broader base for people who would have standing to bring this kind of claim. In other provinces, my client, who’s an independent adult child who has no financial need … would not have been able to bring this application.”

Trevor Todd, a Vancouver lawyer who has handled several cases involving disinherited children, said such rulings always bring a great deal of media attention.

“If you sit down at a dinner party… you’ll get half the people saying he should be able to leave it to who he wants to, and you’ll get the other half saying, ‘That isn’t right.'”

– The Globe and Mail

S. 60 WESA (Wills Variation) Explained

S. 60 WESA (Wills Variation) Explained

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).

Children Defined Under S.60 WESA

Children Defined Under S.60 WESA

The decision of Sari v Sari 2015 BCSC 1865, while essentially an application for costs, reviews the law as to what the definition of a child or children is for the purposes of having the necessary standing to bring an action under S 60 WESA to vary the will of the deceased on the basis that it’s proposed distribution is unfair. Step children do not qualify- only natural or adopted children of the deceased do.

The case also discussed the rules relating to adoption and inheritances.

The definition of a child according to the law:

In the case of Hope v. The Raeder Estate (1994), 2 B.C.L.R. (3d) 58 (C.A.)., the BC Court of Appeal held that the word “children” in s. 2 of the WVA was restricted to natural or adopted children of the testator. The Hope case was followed in the Court of Appeal in Peri v. McCutcheon, 2011 BCCA 401, 22 B.C.L.R. (5th) 48, where the court held that the plaintiff was not a biological child nor adopted by the testator and had, therefore, no standing to pursue a claim under the WVA.

[23]         Ms. Peri was the biological child of the testator’s wife but was not the biological child of the testator. Ms. Peri was raised by a private foster family and she was told her own parents were unable to look after her. She left the first foster home at the age of 14 and attended another foster home or homes before residing at a private school in Washington State. The testator was the sole financial support for Ms. Peri as she matured.

[24]         Eventually Ms. Peri met the testator, who told her he was not her biological father but continued to provide financial support for her. At age 25 she signed a contract wherein in return for $25,000 she agreed not to make a claim against the estate of the testator or his wife and not to contact their family. When Ms. Peri brought a claim decades later, DNA established there was “zero” possibility she was the testator’s child. In the Peri reasons, the court discussed the earlier decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, as follows at para. 25:

In Hope, this Court distinguished Tataryn and, in so doing, referred to perceived difficulties in crafting a definition of “child” or “children” which would not create uncertainty. In the result, this Court concluded that the task of expanding the scope of who qualified as a child “was not open to us”.

[25]         The court found that changing the definition of child was a task for the legislature. In Peri it was argued that in immigration and birth registration filings, the testator had self-identified as the “father” of the then-infant Ms. Peri. Notwithstanding the testator’s presumptive status as Ms. Peri’s father, the DNA evidence ended any potential claim for paternity. Ms. Peri’s appeal was dismissed. The Peri decision was recently followed in this court in Griese v. Syvret, 2013 BCSC 1601, [2013] B.C.J. No. 1929, where at para. 69 the court stated:

69 I also note that had the deceased not made the defendant a beneficiary of her estate, he would not be entitled to bring a claim pursuant to the WVA to challenge the Will. This is because the defendant is neither a natural nor an adopted child. An expanded definition of child is not permitted, for example to include foster children: Peri v. McCutcheon, 2011 BCCA 401.

[26]         In the Peri decision the definition of adopted child is also set out at para. 22 as follows:

[22] An adopted child is entitled to claim under the Act because, under s. 37 of the Adoption Act, R.S.B.C. 1996, c. 5, when an adoption order is made:

(a)  the child becomes the child of the adoptive parent,

(b)  the adoptive parent becomes the parent of the child, and

(c)  the birth parents cease to have any parental rights or obligations with respect to the child …

Wills Variation: Appealing a Judge’s Exercise of Discretion

Wills Variation: Appealing a Judge's Exercise of Discretion

Judges have a broad discretion in their judicial interpretation of wills variation cases and generally speaking, a litigant cannot appeal finds of fact made by the trial Judge after exercising that discretion.

Appeal court are reluctant to substitute their discretion for that of the trial judge.

The 5 Judge  Appeal Court panel in Kish v Sobchak Estate 2016 BCCA 65 over turned a finding of fact by the trial Judge that the plaintiff was in financial need when the appeal court found that she owned a house and had not utilized the equity in it for living expenses. The Court held that a discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice.

Exercise of discretion

[33]      The line between the exercise of judicial discretion and the finding of facts is not easy to enunciate. For purposes of this case, I respectfully adopt Lord Bingham’s description of judicial discretion given in The Business of Judging: Selected Essays and Speeches (2000):

According to my definition, an issue falls within a judge’s discretion if, being governed by no rule of law, its resolution depends on the individual judge’s assessment (within such boundaries as have been laid down) of what it is fair and just to do in the particular case. He has no discretion in making his findings of fact. He has no discretion in his rulings on the law. But when, having made any necessary finding of fact and necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that embarks on the exercise of a discretion.

I believe this definition to be broadly consistent with the usage adopted in statutes. [At 36; emphasis added.]

Lord Bingham also explains that fact-finding is not “discretionary”, although some judges have described it as such. In his words:

… it is one thing to say that the responsibility of finding the facts is entrusted to a particular person or body, be he judge, arbitrator, official or public authority, and that such finding is to be treated as conclusive or virtually so. But it is quite another to describe that function as discretionary. It is, I suggest, nothing of the kind. In finding the facts the judge’s job is to consider all the conflicting evidence this wav and that and decide as best he can where the truth lies. It is very much the task performed, for instance, by the historian or the journalist as part of his stock in trade. The judges of course are constricted by formalities and rules of evidence which do not afflict them.

On the other hand, he has powers of compelling testimony which they would envy. It is none the less essentially the same function. Yet to say of a historian or journalist that he exercised a discretion in reaching conclusions of fact would, I suggest, be regarded as a libellous. The judge must exercise judgment, not discretion, in finding the facts, and it is usually the most difficult and often most exacting task which the civil trial iudae has to undertake. [At 37; emphasis added.]

[34]      The standard of review applicable in Canada to the exercise of judicial discretion is found in Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 S.C.R. 3. There La Forest J. wrote for the majority:

Stone J.A. cited Polylok Corp. v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713 (C.A.), which in turn approved of the following statement of Viscount Simon L.C. in Charles Osenton & Co. v. Johnston, [1942] A.C. 130, at p. 138:

The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us bv the appellant, then the reversal of the order on appeal may be justified.

That was essentially the standard adopted by this Court in Harelkin v. University of Regina, [1979] 2 S.C.R. 561, where Beetz J. said, at p. 588:

Second, in declining to evaluate, difficult as it may have been, whether or not the failure to render natural justice could be cured in the appeal, the learned trial judge refused to take into consideration a major element for the determination of the case, thereby failing to exercise his discretion on relevant grounds and giving no choice to the Court of Appeal but to intervene. [At 76-7; emphasis by underlining added.]

This standard was affirmed and supplemented more recently in Penner v. Niagara (Regional Police Services Board) 2013 SCC 19, where the Court stated:

A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice:

Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada …

[At para. 27.]

Wills Variation and Discretion

Wills Variation and Discretion

One of the difficulties in advising clients in wills variation cases is that under the WESA provisions relating to the variance of wills, the trial judge has an absolute discretion in his or her award, if any, under the act. The five panel appeal decision of Kish v Doyle and Sobchak 2016 BCCA 65 dealt with the wills variation court  action of two parties who met late in life,  had children from previous marriages and did not wish to be treated as spouses.

In the course of their judgment, they examined  the fine line between the exercise of judicial discretion and the finding of facts , as well as the standard of review to the exercise should judicial discretion  on appeal.

Exercise of Discretion

[33]      The line between the exercise of judicial discretion and the finding of facts is not easy to enunciate. For purposes of this case, I respectfully adopt Lord Bingham’s description of judicial discretion given in The Business of Judging: Selected Essays and Speeches (2000):

According to my definition, an issue falls within a judge’s discretion if, being governed by no rule of law, its resolution depends on the individual judge’s assessment (within such boundaries as have been laid down) of what it is fair and just to do in the particular case. He has no discretion in making his findings of fact. He has no discretion in his rulings on the law. But when, having made any necessary finding of fact and necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that embarks on the exercise of a discretion.

I believe this definition to be broadly consistent with the usage adopted in statutes. [At 36; emphasis added.]

Lord Bingham also explains that fact-finding is not “discretionary”, although some judges have described it as such. In his words:

… it is one thing to say that the responsibility of finding the facts is entrusted to a particular person or body, be he judge, arbitrator, official or public authority, and that such finding is to be treated as conclusive or virtually so. But it is quite another to describe that function as discretionary. It is, I suggest, nothing of the kind. In finding the facts the judge’s job is to consider all the conflicting evidence this wav and that and decide as best he can where the truth lies. It is very much the task performed, for instance, by the historian or the journalist as part of his stock in trade. The judges of course are constricted by formalities and rules of evidence which do not afflict them.

On the other hand, he has powers of compelling testimony which they would envy. It is none the less essentially the same function. Yet to say of a historian or journalist that he exercised a discretion in reaching conclusions of fact would, I suggest, be regarded as a libellous. The judge must exercise judgment, not discretion, in finding the facts, and it is usually the most difficult and often most exacting task which the civil trial judge has to undertake. [At 37; emphasis added.]

[34]      The standard of review applicable in Canada to the exercise of judicial discretion is found in Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 S.C.R. 3. There La Forest J. wrote for the majority:

Stone J.A. cited Polylok Corp. v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713 (C.A.), which in turn approved of the following statement of Viscount Simon L.C. in Charies Osenton & Co. v. Johnston, [1942] A.C. 130, at p. 138:

The law as to the reversal by a court of appeal of an order made by the judge below in the exercise his discretion is well-established, and difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us bv the appellant, then the reversal of the order on appeal may be justified.

That was essentially the standard adopted by this Court in Harelkin v. University of Regina, [1979] 2 S.C.R. 561, where Beetz J. said, at p. 588:

Second, in declining to evaluate, difficult as it may have been, whether or not the failure to render natural justice could be cured in the appeal, the learned trial judge refused to take into consideration a major element for the determination of the case, thereby failing to exercise his discretion on relevant grounds and giving no choice to the Court of Appeal but to intervene. [At 76-7; emphasis by underlining added.]

This standard was affirmed and supplemented more recently in Penner v. Niagara (Regional Police Services Board) 2013 SCC 19, where the Court stated:

A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice:

Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada …

[At para. 27.]

Percentage Awards In Wills Variation Claims Favoured

Percentage Awards In Wills Variation Claims Favoured

The Courts prefer to use percentage awards in wills variation claims rather than specific sums. One of the major reason is the fluctuation in value of  some assets over time.

The recent dramatic rise in lower mainland property values has presented a mild dilemma to practitioners and courts in dealing with the valuation date of an asset for wills variation purposes.

Suffice to say, there is currently a conflict in the decisions of the court, whereby some courts have valued the asset as of the date of death for trial purposes, while other courts have valued the asset as of the date of trial in making awards under the wills variation act, now included in WESA.

Many times the court simply “side-steps” the issue by making an award on a  percentage basis, which has the effect in most instances of requiring the property be sold, and divided on the basis of the percentages awarded to each claimant/ beneficiary.

In many instances, the major asset of an estate is a former principal residence and if the property is to be sold so that the various claimants/beneficiaries can be satisfied, then it makes sense that the property is sold at fair market value, which has the effect of determining the value of the asset as of the date of trial. The BC Court of Appeal also agreed that percentages are the best way to express a wills variation award:

The BC Court of Appeal in Graham v. Chalmers, 2010 BCCA 13 dealt with the issue of valuation of the estate at the time of trial, and offered some commentary as to the difficulty of making variation orders in the face of potentially fluctuating estate values.  The court concluded that the best approach would be to express variation orders in terms of percentages of the estate.  Its relevant comments were as follows:

42 ​The trial judge varied the Will by providing a lump sum of $100,000 to each of the grandchildren and directing that the remainder of the estate of approximately $800,000 be divided equally between Janet Graham and Sandi Chalmers. The order was obviously premised on the increase in value of the estate between the date of Mrs. Graham’s death to the trial date. The variation of $100,000 to each of the grandchildren would otherwise not be logical in the context of the value of the estate at the testatrix’s death and the court’s finding that adequate provision had not been made for Janet Graham. Although there are practical reasons for expressing the division in this manner in this case (where the estate has been liquidated and is held in trust), there are pitfalls in doing so. There may be cases in which the estate is made up of unliquid assets the value of which may fluctuate between the date of death, the trial date, and distribution of the estate. In those cases, it is preferable to express the order in terms of percentages, except of course, in respect of specific bequests that are not disturbed by the variation. The potential difficulty that might arise is that the specific bequest directed by the variation order could, in extreme circumstances of a precipitous decline in the value of the residue, eliminate the intended gift to residual beneficiaries.

43     I therefore consider that the preferable expression of the variation in this case should be in percentages of the residue, which also accords with Mrs. Graham’s testamentary wishes.  [Emphasis added.]

I note that the Court of Appeal did not hold that it was an error by the trial judge to consider the value of the estate at the time of trial.  In any event, however, the higher court preferred to resolve the question of changed value by expressing its variation of the will in terms of percentages rather than fixed numbers.  

Tippett v. Tippett Estate, 2015 BCSC 291. is another recent example of a trial decision that allows a wills variation claims in the form of an order expressed in percentages ( see my blog on Tippett dated September 2,2015 entitled ” Spousal Wills Variation Claims”.

See also McBride v Voth 2010 BCSC 443 one of the leading cases in wills variation where Trevor Todd won the case and the only asset, the home, was ordered sold, the life interest to one child cancelled,  and the sale proceeds divided on a percentage basis amongst three siblings.