Wills Variation Action Won By Two Children Against Sole Beneficiary Sibling

Winning Litigants

 

Hancock v Hancock 2014 BCSC 2398  involved a family of five children where one child was left the entire estate and unsuccessfully defended a wills variation action brought by two of her siblings. The other two siblings remained neutral.

The defence was essentially that the plaintiffs received gifts from their parents while they were alive to have satisfied any moral or legal claims they might have against  the estate.

 

There was no written evidence or suggestion of same for any reasons to disinherit the other 4 children.

 

It is a bit unclear what the value of the estate was, but I believe it was around $900,000 of which $200,000 in unequal amounts were awarded to the two siblings who sued under the wills variation act.

 

The Court confirmed that the date to value is Mrs. Hancock’s date of death is the appropriate date at which to assess the value of the estate: Graham v. Chalmers, 2010 BCCA 13 at para. 35.

 

The Court followed Dunsdon which sets out in a summary manner the criteria to measure a moral cliam owed by a parent to a grown independent child:

In Dunsdon v. Dunsdon, 2012 BCSC 1274, Madam Justice Ballance conveniently summarized the considerations that inform the existence and strength of a testator’s moral duty to independent children:

[134] In the post-Tataryn era, the following considerations have been accepted as informing the existence and strength of a testator’s moral duty to independent children:

 relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;

 size of the estate;

 contributions by the claimant;

 reasonably held expectations of the claimant;

 standard of living of the testator and claimant;

 gifts and benefits made by the testator outside the will;

 testator’s reasons for disinheriting;

 financial need and other personal circumstances, including disability, of the claimant;

 misconduct or poor character of the claimant;

 competing claimants and other beneficiaries:

(See Clucas v. Clucas Estate, [1999] B.C.J. No. 436; McBride v. McBride Estate, 2010 BCSC 443; Yee v. Yu, 2010 BCSC 1464; Wilson v. Lougheed, 2010 BCSC 1868).

[52] In Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (C.A.), the Court of Appeal held that where financial need is not a factor, if the court finds that a testator’s reasons purporting to explain a disinheritance are valid and rational, the testator’s moral duty in respect to that child is negated; the burden then shifts to the plaintiff to show that the will-maker’s reasons were false or unwarranted: McBride at para. 138. In a subsequent decision, Kelly v. Baker (1996), 82 B.C.A.C. 150 (C.A.), the Court of Appeal reaffirmed the requirement that the testator’s reasons must be valid, meaning factually true, and rational, in the sense there is a logical connection between the reasons and the act of disinheritance. The Court went on to conclude that the contents of the testator’s reasons for disinheriting a child need not be justifiable.

57)

The essential question in this case is whether the Will made adequate provision for the plaintiffs who were disinherited by their mother. The circumstances existing at Mrs. Hancock’s death, as well as those that were reasonably foreseeable to her at that time, are to be taken into consideration to determine whether she has made adequate provision: Mawdsley v. Meshen, 2010 BCSC 1099 at para. 317, aff’d 2012 BCCA 91; Eckford v. Vanderwood, 2014 BCCA 261 at para. 53.

The court found that the property had significantly increased in value from when the will ws made to the time of her decease:

“I find, on the totality of the evidence, that as of 2002, and based on a prior cancelled listing, Mrs. Hancock believed that the value of the Dorothy Road Property was in the range of $240,000 to $300,000. Notably, at the time of her death, she had knowledge that the value of the Dorothy Road Property had significantly appreciated, as it sold for $1,400,000.”

[71] As a starting point in this analysis, I note that the weight of the authorities establishes that the law imposes no requirement that children be treated equally by a will-maker. The fact that an independent adult child has not received the same provision under the will as the will-maker’s other child or children, will not, of itself, constitute a breach of the will-maker’s moral duty: Dunsdon at para. 136; McBride at para. 134; Doucette v. McInnes, 2009 BCCA 393; Price v. Lypchuk Estate (1987), 11 B.C.L.R. (2d) 371 (C.A.).

[72] The jurisprudence also establishes that the court may consider the gifts outside the will to determine whether the will-maker has fulfilled his or her obligations. Depending on the circumstances, a will-maker’s moral duty may be diminished or negated entirely where he or she has made inter vivos gifts to a claimant; McBride at para. 133; Doucette at para. 84.

 

 

 

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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