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.

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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