Wills Variation Actions Are Not For Damages For Past Abuse

abuse but no wva damagesA number of court authorities state that wills variation actions are not the vehicle to address damages for past physical, emotional or sexual abuse inflicted at the hands of the testator.

I argue however that it may very well explain estrangement issues, as well as raise a higher moral obligation on the deceased towards his or her abused children.

A recent case for that proposition  is Scott- Polson v Henley 2013 BCSC 247 at paragraphs 85-88, that followed  WG Estate v TG ( 1998) BCJ 2369, and upheld at 2013 BCCA 428

 

On the other hand, the authorities also state that it is legitimate for the court to take into account the circumstances of a child or spouse into account and in so doing consider the behavior of the testator that might give rise to a moral claim under the wills variation act.

Another reason the evidence would be very relevant is to explain the typical estrangement that often occurs after significant abuse is infliction of abuse on a child or spouse of a testator.

 

The often quoted passage is contained in Brauer v Hilton (1979) 15 BCLR 116 ( BCCA):

“I have made no special additional awards to any of the children on the basis of any moral obligations. By virtue of the testator’s difficult personality, all of the testator’s children experienced relatively dysfunctional childhoods. The first family essentially complain they were financially, if not emotionally deprived and abandoned, following their parents’ divorce. S.G. maintains that he was both physically and sexually abused. While his evidence was extremely disturbing I make no finding concerning his credibility. Even assuming the truth of his allegations, the result remains unaffected. A wills variation action is not a vehicle to redress any past wrongs nor to notionally award damages to an aggrieved claimant who suffered ill treatment at the hands of the testator .

 

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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