Wills Variation Action for Daughters Successful on Moral Grounds
Skwarok v Werbenuk Estate 1678 2010 BCSC 1678, is a case where 4 disinherited daughters won an equal share of the estate with their brother who had been left everything.
William Werbenuk died more than two years ago with just enough money in the bank to pay for his funeral. The 86-year-old widower’s will gave all assets to his only son, Randall, and left his four daughters with nothing.
This week, a B.C Supreme Court judge overturned the Penticton, B.C., man’s will, saying his estate should be distributed to all of the man’s children based on “contemporary moral standards” – a move that has sparked much debate about a judge’s right to change a person’s will after they die.
Justice Randall Wong ordered the estate, including Mr. Werbenuk’s Saskatchewan farmland and valuable and extensive violin collection, be split according to need among Mr. Werbenuk’s son and four daughters, threee of whom testified having endured years of abuse at the hands of their father.
In McBride v. McBride Estate, 2010 BCSC 443 (B.C. S.C.), Madam Justice Ballance, discusses some of the factors the courts consider when assessing the strength of a testator’s moral obligations to independent adult children at paragraphs 129 – 142.
25 The part of her discussion that is particularly relevant is found in paragraphs 132 – 134:
4. Gifts and benefits made by the testator during lifetime
 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,  B.C.J. No. 1398 (S.C.); Inch v. Battie, 2007 BCSC 1249, 36 E.T.R (3d) 79 [Inch].
5. Unequal treatment of children
 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,  B.C.J. No. 1393 (C.A.); Price. On the other hand, in Vielbig v. Waterland Estate (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.
The daughters have a “valid moral claim to share in the family wealth,” Judge Wong ruled.
According to the ruling, Mr. Werbenuk physically and emotionally abused his daughters. As punishment, their father regularly forced them to wash his feet, the women testified — a detail th helped lead Judge Wong to decide that the father was a “hard and rigid man who ruled his family, and especially the women, with an iron fist.”
In British Columbia, a parent has a moral obligation to provide for their children after death under the Wills Variation Act, said Trevor Todd, a lawyer who exclusively defends disinherited people. It’s also the only province in which a non-dependent adult child can challenge his or her deceased parent’s will.
In most other provinces, only dependents and spouses can appeal a will before a judge through a similar wills variation act, he said.
The Wills Variation Act has helped many adult children who feel they have been unjustly denied their parents’ wealth after death, said Mr. Todd.
“I see lots of cases like that, where the children are damaged goods,” he said. “what a lot of these cases are is the last kick at you from the grave, the last insult.”
Judges are often sensitive to that and they do need to make judgments on individual cases because they’re all so different, he said.
A parent may explain why children were disinherited, but that’s only one side of the story, said Mr. Todd.
“Sometimes you’ll see wills where a father will be disinheriting his daughter, saying ‘She hasn’t called me in 30years,’ When you tell the daughter dad says he hasn’t seen her, that they’re estranged, she might say ‘Goddamn right we are, he molested me,'” Mr. Todd said.
Judge Wong empathized with the harsh life the daughters had been subjected to and Randall Werbenuk has to accept that, Mr Albas said.
“[My client] is of the opinion that the judge was unduly hard on him. He basically did what his dad told him and h had a reasonable expectation that in doing that, he would be rewarded [in the will],” he said
Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 45 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.