Month: March 2020

Wills Variation: Forfeiture Clauses in Wills Void

Bellinger v. Fayers, Nuytten 2003 BCSC 563 adopted the reasoning of Kent v McKay (1982) 139 DLR (3D) 318 that a forfeiture clause in a will, threatening to disentitle the claimant if a wills variation action is commenced, is void as against public policy.

In the Kent v Mckay decision, the testator left a clause in a will stating that if litigation is commenced to challenge the bequests in the will, then in that event the claimant would be disentitled to share in the estate.

The court held that such a clause in a wills variation claim is void against public policy for three reasons:

the provision attempts to deprive the court of jurisdiction;
the paragraph purports to grant the claimant’s their interest on the condition that they will not dispute the will and seeks to enforce that condition by threat. Such a condition in a will imposed “interrerom” is invalid it common-law;
the clause denies the claimants the right to apply for relief under the wills variation act.

The court held that if the clause in the will had been inserted to deprive the claimants of the right to apply to the courts to establish their existing legal rights, in such a clause is contrary to public policy. The court followed previous authority such as Re Bronson (1958) OR 367.

Such a clause in a will is usually found to be invalid because it deprive the courts jurisdiction only were such provision purports to totally exclude the courts from of adjudicating any matter under the will.

In the Australian decision of Re Gaynor (1960) VLR 640 the deceased will contained a declaration similar to the Kent decision, and provided that if any beneficiary instituted any action to contest the will, such beneficiary would forfeit all of his or her interest.

The Australian courts reasoned that the dependent’s relief legislation which the daughter sought to invoke was legislation imposed as a matter of public concern, and because it is a matter of public concern that the dependent should not be left without adequate provision for the proper maintenance and support, the court held that it is a matter of public policy that support and maintenance be provided for those defined individuals it would be contrary to such policy to allow a testator to circumvent the provisions of the wills variation act by the creation of such a clause in a will.

The court went on to say that it is important to the public as a whole that widows, widowers and children be at liberty to apply for adequate maintenance and support in the event that sufficient provision for them is not made in the will of their spouse or parent.

Wills Variation: History and Perspective

Any discussion of the BC Wills Variation Act ( now S.60 WESA) in order to get perspective requires an understanding of the English common law which provides the background for this Act.

English common law, developed by the English judges over the centuries, provided that when a person died, that person could leave his or her property to whomsoever he or she wished.

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

During that time, few people actually had any property and most wealth was made up of real property which was usually considered to be family property. Because it did not belong to the individual, it was not part of the individual’s estate to be disposed of by will.

Those that had assets often resorted to the use of trusts rather than wills as trusts are not subject to review and public as a will may be.

When the children of wealthy families married, their families often made marriage settlements which included conditions about the ownership of the property and how it would pass upon the death of various family members. Thus, property governed by a marriage settlement was not part of an individual’s estate.

It was in this context that the English courts decided that a testator (person making a will) was free to decide who should inherit under his or her will.

Thus, the English common law allowed testators to dispose of their estates as they saw fit. Even today at common law testators have no legal duty to leave anything to their spouse or their children.

This common law approach, which was inherited by the former British Colonies including Canada, is in stark contrast to most of the non-English speaking world.

Outside of England, the rest of Europe, Central America, South America and many of Europe’s colonies had a civil code that requires a fixed portion of a deceased’s estate (often 50% to 75%) to pass automatically to the surviving spouse and children. The testator can only dispose freely of a smaller portion of his or her estate.

The credo seems to be “you had them, you give them your property when you die”.

In our common law world, the doctrine of testamentary freedom has been modified by statutes, such as the B.C. Wills Variation Act ( S. 60 WESA) , which permit the spouse or children to make a claim against the estate in appropriate circumstances.

Nevertheless testamentary freedom still prevails unless there is a successful statutory claim brought under Wills Variation litigation.

The British Columbia Wills Variation Act ( now S. 60 WESA) allows for equity to be done where a wills variation claim is made by a child or spouse who is disappointed with the provisions of the Deceased’s last will. The disappointed beneficiary may have been completely disinherited, given a minimal sum, or given a life interest rather than the entire property outright.

What property is subject to the British Columbia Wills Variation actions?

No matter where the Deceased lived prior to death, if he or she leaves behind any real property (land and buildings) located in B.C. this property will be subject to the terms of Wills Variation.

Only where a Deceased was domiciled in B.C. at the time of death will his or her personal property (basically cash, securities and moveable assets) fall under Wills Variation , . In basic terms “domiciled” means that the deceased lived in British Columbia and intended to make B.C. his or her permanent home.

Only those assets which actually form part of the Deceased’s estate are subject to Wills Variation claims. Thus, for example a pension benefit payable to a third party beneficiary will likely not be part of the deceased’s estate nor will insurance proceeds payable to a particular beneficiary. Such excluded assets cannot be divided up by the court in action brought under the British Columbia Wills Variation Act they may be considered by the court in ultimately determining what is a fair share of the estate for the various parties if a BC Wills Variation Act claim is made

As to assets held in joint tenancy, it will depend on the individual circumstances of the case whether they pass automatically to the surviving joint tenant or whether they form part of the estate.

For example, if the other owner is the Deceased’s spouse, chances are good that they will take the property by right of survivorship so it will not fall into the Deceased’s estate. If the property is held with someone else, it will depend who paid for the property and the reason for which it is held in joint names-it may be held in trust for the estate or it may pass by right of survivorship.

Legislative Background

New Zealand was the first common law jurisdiction to seriously question the doctrine of testamentary freedom on the basis that the family had a right to be protected. In 1900 New Zealand passed the Testator’s Family Maintenance Act and in 1920, British Columbia followed suit.

The two jurisdictions remain perhaps the only ones in the world where an adult independent child of a deceased can sue to vary the will in his or her favour on the basis that he or she were not adequately provided for.

Other Canadian provinces have similar legislation however in other common law provinces children have no claim unless they are infants or were otherwise dependent on the testator.

The major difference is that under the B.C. Wills Variation the testator’s adult independent children may bring a claim irrespective of their age or state of dependency.

Thus, in other provinces, a parent may disinherit an adult independent daughter on the basis of her gender alone or disinherit a gay son based on his sexual preference alone. There would be no remedy in either case unless the child was still a dependent.

In British Columbia, however, such wills would be open to challenge under the provisions of our Wills Variation Act as being unfair and in breach of our contemporary community standards.

Potential Claimants in British Columbia

S. 60 WESA permits a claim to be brought only by a spouse or child ( natural or adopted) of the Deceased.

WESA defines spouse to include a same sex or common law spouse provided the couple had been cohabiting in a marriage-like relationship for at least 2 years prior to the Deceased’s death.

The case law interprets children to include adopted children but not step children. In the case of unacknowledged biological children DNA testing can be very helpful in some cases.

BC Estate Law re Wills Variance: Testamentary Autonomy

BC Law has wills variance laws that Trevor Todd has successfully litigated over for 50 years.

The leading case in British Columbia on wills variation law and testamentary autonomy is the Supreme Court of Canada decision Tataryn v Tataryn (1994) 2 SCR 807 , which set out an objective analysis of whether the testator was acting in accordance with societies reasonable expectations of what a judicious parent would do in the circumstances, by reference to contemporary community standards.

There are two main considerations that the courts must observe when deciding wills variation cases, namely:

1. the main purpose of the wills variation act (now S.60 WESA) is the adequate, just and equitable provision for the spouses and children of testators;

2. The other interests protected by the act his testamentary autonomy. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his or her legitimate concerns and provide for an ordered administration and distribution of his or her estate in the best interests of the persons and institutions closest to him or her. It is the exercise by the testator of his or her freedom to dispose of his or her property and is to be interfered with not lightly but only in so far as the statute requires.

Thus the question of what is just adequate and equitable under the wills variation act and subsequent case law, is complicated by the need of the court to support testamentary autonomy as much as is reasonably possible in the circumstances of the particular case.

The language of the legislation confers a broad discretion on the court.

The generosity of the language suggests that the legislature was attempting to craft a formula which would permit the courts to make orders which are just in the specific circumstances and in light of contemporary standards.

This means that the act must be read in light of modern values and expectations. The court pointed out that what was thought to be adequate, just and equitable in the 1920s may be very different from what is considered adequate, just and equitable today.

The searches for contemporary justice.

With respect to the protection of testamentary autonomy, the Taryn decision stated at paragraphs 815 – 16:

“the other interests protected by the act his testamentary autonomy. They acted not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to override the latter with what was “adequate, just and equitable in the circumstances.” Testamentary autonomy was to yield to what is adequate and just in the circumstances, and the ultimate question is what is adequate, just and equitable in the circumstances judged by contemporary standards. Once that is established, it cannot be cut down on the ground that the testator did not want to provide what is adequate, just and equitable.”

In Grewal v Litt 2019 BCSC 1154 the court stated that the judicial approach to variation of a will under section 60 of WESA is not to start with a blank slate and then write a will design to write all of the perceived wrongs of the past. Instead judicial interference with testamentary autonomy should be minimized. Chan v Lee 2004 BCCA 644 at para.43

Wills Variation: Estrangement/Neglect

When adult children are disinherited by their parents on the basis of alleged estrangement, the courts will examine the relationship very closely to attempt to determine whether the disinherited child, or the parent, were more at fault than the other for the estrangement.

Estrangement situations often present factual problems for the court to determine in wills variation claims, and the modern judicial trend indicates that the courts will inquire into the role played by the testator in the estrangement, or the relationship breakdown, and where does seem to be largely the fault of her at the insistence of the testator, it will likely not negated testator’s moral duty, and may in fact, even enhance it.

The courts have become familiar with abandonment or purported estrangement between a child and an adult, and more times than not in recent judicial cases, the court has indicated that the it may discern a moral duty, as a means of rectifying the testator’s childhood neglect of the children in the event of abandonment. Gray v Gray 2002 BCCA 94.

The comments made by an appeal court judge in the Gray decision is often quoted with respect to claims brought by children who were abandoned early in life by the deceased:

“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 claims to a share in his or her 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. “

In J.R. v JDM 2016 BCSC 2265 the court dealt with a claim brought by a disinherited daughter who the deceased stated he had not seen for over 10 years as his reason for the disinheritance.

The daughters evidence was that she had been sexually and emotionally abused by her father, together with his lack of financial contribution to her education and general welfare, and this evidence was accepted by the court.

As is often the case in these factual estrangement cases, the daughter left home at age 15, and any attempt by her in subsequent years to make amends with her father was rejected by him.

She was not invited to his second wedding for example. The court found that the onus for repairing the relationship and seeking any form of reconciliation with the daughter rested squarely with the father, and his moral duty to her was enhanced as result of his blameworthy conduct.

In Baulne v Baulne Estate 2002 BCSC 1905 the parents of the claimant committed suicide together, taking with them. Their disabled son. The claimant was the only surviving child of the deceased couple and the disinherited him in favor of their grandchildren.

The claimant had in fact refuse to allow his parents to visit their granddaughter, and in fact formalized it in a restraining order against his parents.

The court notwithstanding the truth of the will makers reason for the disinheritance, held that the deceased parents, particularly the mother, were jointly responsible for the estrangement and varied the will, such that the claimant receive 60% from each of his parents estates.

Even though it was found that the plaintiff treated his parents with disrespect, the court found on the evidence that while the plaintiff treated his parents, the court was unable to conclude that it negated the moral obligations of his parents otherwise owed to him.

Wills Variation: Disinheritance For Misconduct

Contrary to what many British Columbian’s believe, it is possible under the wills variation provisions of S. 60 WESA for the court to refuse variation to a person whose character or misconduct in the opinion of the court, disentitles him or her to such relief.

Such misconduct or lack of character is measured as of the date of death, not subsequently, and must be directed at the testator.

Generally speaking, the conduct or lack of character must be relatively severe in order to justify a disinheritance, and the testator should be careful to leave detailed valid and rationale reasons for the disinheritance, preferably in a written memorandum to accompany the original will.

S.62 WESA states that in a proceeding brought to vary the will, the court may accept the evidence, it considers proper respecting the will maker’s reasons for making the gifts in the will, or alternatively, for not making adequate provision for the will maker spouse or children, including any written statement signed by the will maker.

In estimating the weight to be given to a statement referred to by the testator, the court must have regard to all of the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement.

In judging the severity of the misconduct alleged by the testator for disinheritance of a child or spouse, the courts have previously declined to allow the disinheritance unless the allegations are valid and rational.

The leading case in this regard is the Court of Appeal decision of Kelly v Baker 15 ETR (2d) 219:

“In deciding a wills variation claim, the task of the court is to decide whether, at the date of the testator’s death, his or her will was consistent with the discharge by a good parent of his or her duties to his or her family. The law does not require that the person expressed by the testator in his or her will, or elsewhere, for disinheriting be justifiable. It is sufficient if there were valid and rational reasons at the time of his or her death – valid in the sense of being based on facts; rational in the sense that there is a logical connection between the reasons, and the active disinheritance..”

In Fuller v Fuller 2008 BCSC 702 the court allowed a son of the deceased to succeed in a wills variation claim brought against his late father’s estate, and whose will inaccurately stated that he had made adequate provision for his son throughout his lifetime by gifts to the extent that he owed no further obligation.

The court found that in fact the gifts made by the father to the son were modest at best, and that the reasons for the disinheritance were not valid and rational. The will was varied to allow the son to receive two thirds of the $90,000 estate.

Other cases have ignored reasons for disinheritance left by the testator, for such reasons as the beneficiary “being gay”, “being in incompetent weakling”,” has been unsuccessful in multiple business ventures”, and many other alleged reasons that when scrutinized are not valid or rational.

Holvenstot v Holvestot Estate 2012 BCSC 923 is an excellent example of the wills variation claim brought by a disinherited son of the deceased where the claim was dismissed for valid and rational reasons that the deceased stated as reasons for not having a moral obligation to provide for her son.

The deceased left a long list of complaints that she had with her son to support her reasons for his disinheritance, that included previous court transcripts where she told the court that she wanted to move away from her son and for him “not to bug her anymore”.

The plaintiff alleged that the mother had a moral obligation to “make adequate provision” for him in her will.

He alleged that the size of the mother’s estate was adequate for such a provision, and no circumstances exist which would negate a moral obligation.

In particular, the plaintiff alleged in effect, that he did not commit any (or any significant) blameworthy conduct toward the mother, with the result that her reasons for disinheriting him are either untrue or not rationally connected to her decision to disinherit him.

Much of the judgment is spent by the court reviewing each of the reasons given by the deceased for disinheriting her son, with the court rejecting some reasons and upholding others.

The court found as a fact that, the plaintiff commenced an action against his mother to have her declared mentally incompetent. The action failed, and the mother was declared competent.

The mother was required to sue the plaintiff in order to prevent him from getting ownership of two acres of her land and to compel him to return items of her property.

All of this litigation cost the mother a considerable amount of money and caused her much emotional upset.

The court found the reasons to be true.

In my opinion, these reasons are rationally and logically connected to the mother’s decision to disinherit her son.

As I see it, a judicious parent, applying contemporary community standards in the circumstances existing at the time of the mother’s death, could reasonably have decided to disinherit the plaintiff, for these reasons alone.

The law does not require that the reason expressed by the testator in her will, or elsewhere, for disinheriting the appellant be justifiable. It is sufficient if there are valid and rational reasons at the time of her death – valid in the sense of being based on fact; rational in the sense that there is a logical connection between the reasons and the act of disinheritance.

In the Court of Appeal decision Hall v. Hall, 2011 BCCA 354. At paragraph 43 stated:

[43] … To succeed in his challenge to her will, Tony must establish these reasons were false or unwarranted: Bell v. Roy Estate …. In considering that proposition, it is not necessary to find the reasons were justifiable. It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance: Kelly v. Baker

[44) Having regard to this re-statement of the law in Hall v. Hall, I think it is questionable whether the reasoning in the earlier decisions of this court which I have discussed, should be followed. If I am wrong, then I would favour using the “judicious parent” test in deciding the issue of whether a “true” reason of a testator for disinheriting a spouse or child, is also rationally connected to the decision to disinherit. I would apply a test similar to that stated by Mr. Justice Sewell in paragraph 70 of LeVierge v. Whieldon (and not as stated by him in paragraph 61). That is, in deciding whether a testator’s reason is rationally connected to the decision to disinherit, it would be enough that a judicious parent could have made that decision, based on the reasons that existed. There should be no requirement that a judicious parent would have made the decision to disinherit in the same circumstances. In my view, if it were otherwise, the court would be deciding, in effect, whether the reasons were objectively “justifiable.”

Disinheritance wills variation

BC Wills Variation Estate Lawyer: Unequal Treatment of Adult Children

BC Wills Variation: Unequal Treatment of Adult Children

Trevor Todd and Jackson Todd have over 60 years combined experience in wills variation claims.

If there is one underlying principle that I have been exposed to in decades of estate litigation, it is that adult children of a deceased parent expect to be treated equally (or better) than their siblings.

The societal advent of more frequent so-called blended families, divorce, and remarriage with new family has in many situations complicated the accomplishment of treating all the children equally.

There is no requirement to in BC wills variation litigation or S. 60 WESA that requires a deceased parent to treat his or her children equally, and if done, this in itself does not necessarily establish a moral claim by the child(ren) who have been “shortchanged” in their inheritance.

Simply put the test is adequate provision and not equal provision.

In Vielbig v Waterland Estate (1995) 1 BCLR (3d) 76 (BCCA) the appeal court found that equal treatment amongst independent adult children was in fact, prima facie fair from a moral standpoint.

The court held that in the absence of relevant reasons for an equal distribution, there is a reasonable expectation that adult children were will share equally, even though there is no legal obligation on the part of the deceased parent that requires an equal distribution amongst his or her children.

The courts are trending towards the view that equal apportionment amongst adult children is prima facie a discharge of the testator’s moral duty to his or her children.

This was applied in Inch v Stead Estate 2007 BCSC 1249 , where the court held that an equal distribution was prima facie fair, despite the fact that one child received significant assets by way of inter vivos transfers.

Inter vivos gifts of also been held to be a sufficient discharge of the parents moral obligation to provide for an adult independent child, as was the case in the BC Court of Appeal decision of Doucette v Doucette Estate 2009 BCCA 393, in which case, the court had no difficulty with the disinheritance of one of the preferred beneficiaries by allocating her nothing out of the estate in light of the generous gifts that she had received outside of the will via jointly held assets.

adult children wills variation

Wills Variation: Criteria For Adult Children

A body of case law exists that set out the criteria for the courts to consider when adjudicating a wills variation claim brought by an adult independent child against a deceased parent’s estate.

British Columbia is the only province in Canada that allows for independent adult children not dependent on their parents to make a claim for wills variation of a parent’s last will and testament if the said child was not adequately provided for. ( see S. 60 WESA for current legislation)

The leading case Tataryn v Tataryn (1994) 2 SCR 807 clarified that most people would agree that an adult independent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow, after he for after firstly satisfying any legal obligations owed to a spouse or dependent children.

The court recognized that while the moral claim of an independent adult child may be more tenuous, a large body of case law existed that suggested that if the size of the estate, permitted and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made in an estate.

The court was clear that the testator’s will should only be interfered with to the extent necessary to meet the testator’s legal and moral obligations and also that so long as the testator has chosen an option which is within the range of appropriate options for dividing his or her estate, the will should not be disturbed.

The two leading cases on the summary of overriding principles the courts will consider and a wills variation claim are Clucas estate (1999) 25 ETR 175 at para. 12 and later McBride v Voth 2010 BCSC 443 at paras 129-142.

Subsequently in Dundsdon v Dunsdon 2012 BCSC 1274 at para. 234 the court identified the following 10 considerations as those which have been accepted, in the post Tataryn era, as informing the existence and strength of a testator’s moral duty to independent children:

The relationship between the testator and the claimant, including abandonment, neglect and estrangement by one or the other;
The size of the estate;
The contributions if any, by the claimant;
Any reasonably held expectations to inherit of the claimant;
The standard of living of the testator and the claimant;
Gifts and bequests made by the testator outside of the will or previously by inter vivos gifts;
The testator’s reasons for any disinheritance;
The financial need another personal circumstances, including disability of the claimant;
Any misconduct or poor character of the claimant;
Competing claimants and other beneficiaries.

wills variation