Will Varied From Grandchildren to Children of Deceased

The BC Court of Appeal in Graham v Graham Estate 2010 BCCA 13, upheld the trial Judge where a will varied in favour of the children of the deceased.

The testator left a $1 million dollar estate in equal share between her two children and to the defendants two children( grandchildren, in addition to a $25,000 bequest to the plaintiff’s daughter who was childless.

The other child, the defendant had two children. Thus the will divided the estate equally ( except for the $25,000 to the plaintiff) as %25 to the plaintiff, and %25 to her defendant sister, and % 25 to each to the defendants two children.

The trial Judge varied the will on the basis that the plaintiff was not adequately provided for.

The grandchildren shares were reduced from $250,000 each, to $100,000 each, and the remaining $800,000 was divided equally between the two daughters of the deceased.

The Court of Appeal upheld the trial Judge and commented that it is preferable to express the order in terms of percentages.

Accordingly, the grandchildren were given %10 each and %40 was awarded to each of the two daughters.

The case is a good illustration that although grandchildren are close family, the Court will still look to whether or not the deceased met his or her moral obligation to adequately provide for children and not grandchildren

The Court should firstly consider whether the will made adequate, just, and equitable provision for the plaintiff, regardless of the claims of the grandchildren , who were not owed any moral obligation under the Wills Variation Act, although their claims were entitled to deference to the testator’s autonomy after the moral claims were met.

The Court further held that the appropriate date at which to assess the value of the estate was at the date of death.