A Tribute to The BC Wills Variation Act

The question of a child’s ‘entitlement’ to share in a parent’s estate often provokes a very lively discussion. Many believe that a parent`s obligation ends once they have “fed, clothed, educated and sent the child on his or her way”. They argue that testators should be free to leave their inheritance as they see fit, subject of course to any claims by a surviving spouse.

The potential for inheritance conflicts has been growing with the increasing number of “blended families“. Today’s parents may have second or even third families. In such cases, for example, there may be differing perceptions of any obligation to provide an inheritance for younger children, as opposed to older more established children.

Thus it is common for people to criticize the BC Wills Variation Act as permitting the ‘malcontents’ to contest a will.

In a nutshell the British Columbia Wills Variation Act is the statute which permits a surviving spouse or childr to contest a will on the basis that it does not make adequate provision for the claimant. The class of eligible claimants includes the surviving spouse, common-law spouse, same-sex spouse and both the natural and adopted children of the deceased.

We hope to set out briefly the background to the BC Wills Variation Act and provide real life examples to illustrate the clear need for such legislation. As such, this article is intended as a tribute to the provisions of the B.C. Wills Variation Act.

Background

Any discussion of the BC Wills Variation Act requires an understanding of the common law we inherited from England as this common law underlies the legislation.

The English common law provided that when a person died, that person could leave his or her property to whomsoever he or she wished.

This ability to dispose of one’s estate is known as “testamentary autonomy” or “testamentary freedom”. It is legal doctrine which was developed by the English courts during a time (1700-1900) when little property was actually disposed of by will.

During that time, most wealth was made up of real property which was generally considered to be family property. Because it did not belong to the individual, it was not part of the estate to be disposed of by will upon death.

When the children of wealthy families married, their families often made marriage settlements which included conditions with respect to the ownership of the property and its passage upon death. Thus, property governed by a settlement was not part of an individual’s estate.

It was in this context that the English courts decided that a testator was free to decide the beneficiaries to inherit under his or her will.

Thus, the English law of succession left it to the discretion of testators to dispose of their estates as they saw fit . At common law, testators are not legally obliged to make provision for their spouse or children. There is no binding obligation to leave a set amount to their spouse or their children.

In modern estate law, however, this common law doctrine has been modified in many jurisdictions which have passed enactments to permit the spouse or children to make a claim against the estate where a deceased has not made adequate provision for them. Would-be heirs may claim against the deceased’s estate and ask the court, in effect, to rewrite the will to provide appropriately. In British Columbia, this enactment is known as the Wills Variation Act.

Unless there is a successful wills variation claim brought under the statute, however, the principle of testamentary freedom still prevails at common law in British Columbia.

It is noteworthy that this common law approach is in stark contrast to the rest of the world. In civil law countries (which includes most of the non-English speaking world including all of non-English Europe and its former colonies) a fixed portion of a deceased’s estate -often 50% to 75%- passes automatically to the surviving spouse and children. The testator can only dispose freely of a portion of his or her estate. The credo seems to be “you had them, you pay for them”.

Claims under the British Columbia Wills Variation Act

Most of us had the good fortune to be raised in happy, healthy families, however there is no licence to become a parent. Any experienced teacher, minister, doctor or other person serving the public will attest to the great number of dysfunctional families.

In our practice, many estrangement cases seem to involve a history of physically, emotionally and/or sexually abusive treatment by the parent or step-parent toward the child. Where the estrangement can be properly explained and put into perspective, then the adult child may well have a solid Wills Variation Act claim.

A common claim involves the children of abusive and alcoholic parents, generally fathers. A recurring theme is a father coming home drunk after work and generally terrorizing the family on an ongoing basis. Many children leave home at an early age, and bear a strong resentment against the abusive parent. Many children go on to repeat the same patterns. At best, they remain emotionally damaged..

Needless to say, abusive parents generally have little insight as to the effects of their actions. Thus the abuser when preparing his or her will, will typically disinherit the children on the basis that he has not heard from them for a lengthy period of time, and thus considers himself estranged from his children, and owes them nothing. The legal professional preparing a will often, unfortunately, simply accepts this statement as the truth of the matter.

Real Life Examples

1. One particularly extreme case we handled involved a lonely 71 year old widower who met up with a 41 year old escort “specializing in seniors”. She soon moved into his home, convinced him to make sizable financial gifts and isolated him from his own children.. They married shortly thereafter and the widower signed a new will disinheriting his three adult children, leaving everything to his new wife or alternatively her long estranged daughter (whom he never met). The new “wife” changed the home phone number and began running her seniors escort service out of the home.
This so-called marriage ended abruptly 3 months later when the gold digger beat her elderly husband to death, apparently while high on cocaine. In fact, she beat him so severely she broke every rib in his body. She was subsequently convicted of murder thus became disentitled, as a wrongdoer, from benefiting from her own crime by inheriting under the will. Her daughter, however, arguably continued to have a valid claim as the alternate beneficiary under the will.

2. This case involved a 40 year old woman S who had been adopted at age 7 by the Deceased and her husband. It seems that she was adopted as a servant more than a child as she was made to work long hours in the deceased’s puppy farm business. Each morning before school she got up at 4.30 am to feed and care for up to 100 dogs before taking a school bus to school.. She was severely beaten for any perceived misbehaviour or insubordination. In extreme situations, she was denied food. Mother wore the pants in the family and her father did not intervene on her behalf.

When S skipped school for the first time at age 16 (to help her friend prepare for the friend’s mother’s discharge from hospital) the deceased became exceedingly angry. S stayed away for a couple of days to let her mother cool down. When S phoned home her mother related that she had burned all of S’ possessions and would be putting S’s dog down. “You came into the house with nothing and you will leave with nothing”. This woman obliged her husband and other family members to disown S as well.

S was homeless and taken in by friends. With few options, she became pregnant and married a severely abusive man who continued to abuse her and the children for years before she left him. Their third child was born severely disabled child and she raised this son on her own for 24 years. This son cannot speak, still wears diapers, weighs 40-45 pounds and is catastrophically injured in every sense of the word.

Nevertheless S managed to get a university education by attending classes while her son was at daycare as a child. Once he became an adult however, this eligibility ended and she cared for him fulltime rather than putting her son into an institution. S had attempted to contact her adopted mother on several occasions, but was rebuffed at each turn. The Deceased died leaving an estate of approximately $250,000. Her will provided S with a bequest of $5,000 on the basis that they had been estranged for 25 years.

In this case a Wills Variation claim was made, however once the proper facts were brought to the attention of the executor and beneficiaries, the case was quickly settled on the basis of S receiving one-half of the net estate.

3. This case involved D, a 45 year old woman who, as an only child, who had been doted upon by her parents. D was of average intelligence however she had been physically disabled child from birth due to cerebral palsy. D lived at home with her overly protective parents until her late 30’s when she rebelled by leaving her parent’s home to marry her childhood sweetheart. This was done over her parents’ protests however before long they came to accept the marriage. They did however continue to try to control their daughter to some degree.

D was unable to work and by marrying, D lost her only source of income, her disability pension. By any objective standard, the husband was a good husband and provider however he worked as a school janitor so they had very little disposable income. The couple had been married for 8 years when D’s father and then mother died within a few months of each other.

D’s mother left a homemade will which provided the executor could pay off the mortgage on D’s townhouse ($100,000) and could pay her the sum of $1,000 per month until age 65. Thus D would not inherit the capital of her mother’s estate unless and until she reached age 65. If she died before 65 years, the residue would be divided amongst her 22 first cousins. The estate assets totaled in excess of $800,000.

D made a claim under the B.C. Wills Variation Act seeking to have the will varied so that she could receive the entire estate immediately. Her application was opposed by some of the alternate beneficiaries. They felt very strongly that their aunt’s wishes should be honoured and the will upheld.

At trial we tendered expert evidence from an occupational therapist, as to the substantial expenses required to allow D. to live a reasonably normal and comfortable life. The court relied on B.C. Wills Variation Act to give the entire $800,000 estate to D immediately.

Summary of Basic Principles The Clucas Decision

An excellent summary of the basic principles of the British Columbia Wills Variation Act is set out in Clucas v. Clucas Estate 29 E.T.R.(2d) 222.

Briefly those principles include the following:

The main object of the B.C. Wills Variation Act is to provide adequate, just and equitable provision for the testators surviving spouse and children.

The BC Wills Variation Act also protects the interest in testamentary freedom which is not to be interfered with lightly. In the absence of other evidence, a testator is presumed to know best how to meet his legitimate obligations and concerns.

The BC Wills Variation Act provides an objective standard by which to measure whether a testator has provided “adequate and proper maintenance and support” for his surviving spouse and children. Thus the court should examine the will keeping in mind society’s reasonable expectations of what a judicious parent would do in the circumstances.

In making a determination, the court must consider any legal obligations of the testator to the spouse and children, followed by the moral obligations to them.

Independent adult children have a more tenuous moral claim than any spouse or dependent adult children. If the size of the estate permits, however, parents should generally make some provision for adult independent children (unless there are circumstances which rule out such an obligation)

A testator may have a moral duty to adult children in a number of different circumstances including disability, legitimate expectation of inheritance, probable future difficulties of the child; the size of the estate and other legitimate claims.

This moral obligation by a testator may be negated by “valid and rational” reasons which justify disinheriting the child. In such a case, these reasons must be based on true facts and must be logically connected to the disinheritance

Although a needs/maintenance test is no longer the sole factor governing such claims, a consideration of needs is still relevant.

CONCLUSION

The purpose of this paper is to demonstrate that despite the frequent criticisms made of the British Columbia Wills Variation Act, that there are many circumstances where the Wills Variation Act allows the court to rewrite the will to ensure justice is done.

The Court of Appeal aptly summarized this in Gray v. Nantel 2002 BCCA 94. In allowing the wills variation claim of an estranged child, Chief Justice Finch stated:

“I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claim to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son” (emphasis added).

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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