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Wills Variation – How to Win

S 60 of WESA allows the court to exercise its discretion re the claims of spouses and children against the assets of a deceased’s estate, on the basis that they were not adequately provided for in the estate.

 

The right to bring a Wills Variation  claim is limited to common law or married spouses,and natural or adopted children, but no one else including step children,  or if the child’s DNA does not match that of the deceased.

 

The Wills Variation criteria have been accumulated over almost 90 years of litigation and can be summed up from the two following cases, as to what the court wants  to know in deciding a Wills Variation action:

In Clucas v. Clucas Estate, 25 E.T.R. (2d) 175, [1999] B.C.J. No. 436 (S.C.). Satanove, J. at para [12] says as follows:

Examples of circumstances which bring forth a moralduty on the part of a testator to recognize in his
Will the claims of adult children are:

 

1)       a disability on the part of an adult child;

2)       an assured expectation on the part of an adult child,

3)      or an implied expectation on the part of an adult child, arising
from the abundance of the estate or from the adult
child’s treatment during the testator’s life time;

4)      the present financial circumstances of the child;

5)      the probable future difficulties of the child;

6)      the size of the estate and other legitimate claims.

 

These principles were expanded upon in McBride v Voth, 2010 BCSC 443,  in which Trevor Todd was winning plaintiff’s counsel.:

 

“A number of years ago, this Court identified circumstances that might support or negate a testator’s moral duty to recognize the claim of an adult child in the decision of Clucas v. Clucas Estate, 25 E.T.R. (2d) 175, [1999] B.C.J. No. 436 (S.C.).  I would supplement that helpful summary with the following overview of six of the considerations that inform the existence and the strength of a testator’s moral duty to independent children.  Although many of these factors were developed before Tataryn, for the most part they maintain relevance for the post-Tataryn court.

1.         Contribution and expectation

[129]      Contributions by the claimant to the accumulation of a testator’s assets with little in exchange, or providing other types of contribution or care to a testator will generally serve to strengthen the moral obligation, other things being equal.  The contribution may also found a legal claim in unjust enrichment or quantum meruitTataryn; Re Sleno 78 D.L.R. (3d) 155, [1977] B.C.J. No. 140 (S.C.); Lee v. King Estate, [1975] B.C.J. No. 893 (S.C.); Harris v. Harris, [1980] B.C.J. No. 1417 (S.C.); Ryan v. Delahaye Estate, 2003 BCSC 1081 (CanLII), 2003 BCSC 1081, 2 E.T.R. (3d) 107 [Ryan].  Contributions made by a first spouse who predeceased the testator may support a moral obligation to the adult claimant children of that first marriage:  Saugestad v. Saugestad, 2008 BCCA 38 (CanLII), 2008 BCCA 38, 77 B.C.L.R. (4th) 170; Waldman v. Blumes, 2009 BCSC 1012 (CanLII), 2009 BCSC 1012, 51 E.T.R. (3d) 253.

[130]      A moral duty may arise where the testator’s conduct has created a bona fide expectation on the part of the plaintiff to receive a benefit which does not come about on death:  Marsh v. Marsh Estate 19 E.T.R. (2d) 184, [1997] B.C.J. No. 1286 (S.C.); More v. More Estate, 2002 BCSC 920 (CanLII), 2002 BCSC 920, 46 E.T.R. (2d) 96.

2.         Misconduct/Poor character

[131]      Section 6(b) of the Act empowers the court to refuse variation to a person whose character or conduct, in the opinion of the court, disentitles him or her to relief.  Such misconduct is measured as at the date of death, not subsequently, and must be directed at the testator.  Generally speaking, the conduct must be relatively severe in order to justify disinheritance:  Gieni v. Richardson Estate, [1995] B.C.J. No. 1227 (S.C.); Sammon v. Stabbler, 2000 BCSC 1048 (CanLII), 2000 BCSC 1048, 77 B.C.L.R. (3d) 283.  A child who is a disappointment overall (Sawchuk v. MacKenzie Estate, 2000 BCCA 10 (CanLII), 2000 BCCA 10), is an “incompetent weakling” (Re Bailey Estate, reflex, [1972] 1 W.W.R. 99, 1971 CarswellBC 195 (S.C.)), or is unsuccessful in multiple business ventures and has a difficult time “fighting the battle of life” (Re Radcliffe, 2 B.C.L.R. 220, [1977] B.C.J. No. 1036 (S.C.)) was not considered to be sufficiently defective.

3.         Estrangement/Neglect

[132]      In the early development of the caselaw, a long period of separation, abandonment or estrangement between a child and testator was frequently, though not invariably, taken to militate against finding a moral duty to an adult child.  The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it.  The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children: Gray v. Gray Estate, 2002 BCCA 94 (CanLII), 2002 BCCA 94, 98 B.C.L.R. (3d) 389, Doucette v. Clarke, 2007 BCSC 1021 (CanLII), 2007 BCSC 1021, 35 E.T.R. (3d) 98 [Doucette]; Tomlyn v. Kennedy, 2008 BCSC 331 (CanLII), 2008 BCSC 331, 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53 (CanLII), 2006 BCSC 53, 21 E.T.R. (3d) 285; P.S.G. v G.G. Estate, 2005 BCSC 1855 (CanLII), 2005 BCSC 1855; Ryan.

4.         Gifts and benefits made by the testator during lifetime

[133]      Depending on the circumstances, a testator’s moral duty may be diminished or negated entirely where he or she has made inter vivos gifts to the claimant, or the claimant has received assets on the testator’s death outside the framework of the will.  This includes benefits conferred by way of an inter vivos trust, outright gift and assets passing on death by operation of law such as joint tenancies, and by way of specific beneficiary designation of insurance proceeds, RRSPs, pension benefits, RIFs, and the like.  On the same reasoning, if a testator has made pre-death gifts to individuals other than the plaintiff, or has arranged his or her affairs to facilitate a passing of assets to such individuals outside the provisions of the will, the moral duty owed to the plaintiff may be intensified.  See generally:  Ryan; Higgins v. Wojciechowski Estate, [1992] B.C.J. No. 1398 (S.C.); Inch v. Battie, 2007 BCSC 1249 (CanLII), 2007 BCSC 1249, 36 E.T.R (3d) 79 [Inch].

5.         Unequal treatment of children

[134]      That an independent child has not been given the same provision under a will as the testator’s other child or children will not, of itself, necessarily establish a moral claim:  Re Lukie et al and Helgason et al., 72 D.L.R. (3d) 395, [1976] B.C.J. No. 1393 (C.A.); Price.  On the other hand, in Vielbig v. Waterland Estate 1995 CanLII 2544 (BC CA), (1995), 1 B.C.L.R. (3d) 76, 6 E.T.R. (2d) 1 (C.A.), the Court of Appeal held that equal treatment among independent adult children is prima facie fair from a moral duty standpoint.   In Ryan, the court held that in the absence of relevant reasons for an unequal distribution, there is a reasonable expectation that adult children will share equally, even though no legal obligation requiring equal distribution exists.  (para. 67).  The emerging rule of thumb to the effect that equal apportionment among children prima facie discharges a testator’s moral duty was applied in Inch.  There, 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.  The proposition was recently revisited by the Court of Appeal in Doucette.  In that case, the Court of Appeal appeared to have 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 the will via jointly held assets.

6.         Testator’s reasons for disinheritance/Subordinate benefit

[135]      The approach to be taken by the court in relation to a testator’s reasons for disinheriting or providing a modest benefit only to a child starts with consideration of the Court of Appeal decision in Bell v. Roy Estate 1993 CanLII 1262 (BC CA), (1993), 75 B.C.L.R. (2d) 213, 48 E.T.R. 209 (C.A.) [Bell].  In Bell, the testator left a will under which she bequeathed a small gift to one adult son, nothing to her adult daughter, and left the lion’s share of her estate to her other adult son.  Contemporaneously with making her will, the testator wrote a separate letter purporting to explain the unequal treatment of her children, and in particular the disinheritance of her daughter.  The trial judge concluded that the reasons offered by the testator for disinheriting her daughter were accurate and sufficient to support the will.  Accordingly, variation of the will was refused.  The Court of Appeal’s dismissal of the daughter’s appeal came before the Supreme Court of Canada issued its decision in Tataryn.

 

 

 

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