Tataryn – The Leading Wills Variation Case in BC

In Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 [Tataryn] the Supreme Court of Canada clarified the law of wills variations and held that a will may be varied under the WVA where there are legal or moral obligations to provide maintenance and support for a spouse or child.

 

In Tataryn, the testator husband and his wife had been married 43 years and, through their joint efforts, had amassed a home (in the testator’s name), a rental property and bank funds. There were two adult sons, J. and E. The testator disliked J. (for reasons that were not apparent). He feared that if he left his estate to his wife, she would pass it on to J. By his will, the testator gave E. full title to the rental property and created a discretionary trust dealing with the residue of the estate, including the home. Under the trust the wife was the beneficiary of a life interest in the home. E. was the trustee and residuary beneficiary taking full title to the home upon the wife’s death. J. received nothing under the will or the trust it created.

The trial judge in Tataryn revoked the bequest of the rental property to E. and granted the

wife a life interest in that property; directed that J. and E. each receive an immediate gift of $10,000 out of the residue of the estate. The trial judge also directed that when the wife died the residue of the estate, including the home and the rental property, was to be divided one-third to J. and two-thirds to E.

The wife’s appeal was dismissed by the British Columbia Court of Appeal: Tataryn v.

Tataryn Estate (1992), 74 B.C.L.R. (2d) 211 (C.A.).

The wife successfully appealed to the Supreme Court of Canada.

The court granted the sons an immediate gift of $10,000 each. The wife was granted title to the family home, a life interest in the rental property and the entire residue of the estate after payment of the immediate gifts to the sons. Upon the death of the wife, the sons were entitled to the rental property (one-third to J.; two-thirds to E.)

In Tataryn, McLachlin J. (as she then was) discussed the twin interests protected by the

WVA. McLachlin J. described the “main aim” as the “adequate, just and equitable provision for the spouses and children of testators” and that at the very least, that means preventing spouses and children from becoming a charge on the state (Tataryn at 815). However, said McLachlin J., it is equally

reasonable to suppose that the legislators were concerned with wives and children receiving a just and equitable share of the family wealth even in the absence of demonstrated need.

The second interest protected by the WVA is testamentary autonomy:

The Act did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was “adequate, just and equitable in the circumstances” {Tataryn at 815).

[Emphasis in original]

The court went on to note that what is “adequate, just and equitable” must be judged by contemporary standards. Current standards require that both legal and moral societal norms be considered:

If the phrase “adequate, just and equitable” is viewed in light of current societal norms, much of the uncertainly disappears. Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case (Tataryn at 820-821).

With respect to variation on moral grounds, the court in Tataryn observed that dependent adult children are entitled to such consideration as the size of the estate and the testator’s other obligations may allow. With respect to independent adult children, the court said:

While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made… (Tataryn at 822-823) (emphasis added).

How are conflicting claims to be balanced against each other? Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator’s life i.e., claims based upon not only moral obligation but legal obligations – should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court

to weigh the strength of each claim and assign to each its proper priority……. Any moral

duty should be assessed in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children (Tataryn at 823) (emphasis added).

I add this. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires. (Tataryn at 824) (emphasis added).

 

McLachlin J. concluded that the testator’s only legal obligation was to his wife. Further, the

wife had the highest moral claim on the testator. Both claims were very strong.

 

By contrast, the claims of the sons were not strong:

The remaining moral claims on the testator are those of the two grown and independent sons. The testator gave nothing to one, everything to the other, subject to his provision of money to Mrs. Tataryn. The moral claims of the sons cannot be put very high. There is no evidence that either contributed much to the estate (Tataryn at 825).

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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