Wills Variation: Definition of Child or Children

Wills Variation: Definition of Child or Children

There is no definition of child or children in the wills variation act (now Section 60 WESA), but the case law is clear that only a natural child or adopted child of the deceased (along with a spouse) have the standing to bring a claim for a share of the testator’s estate if not adequately provided for. Lansing v Richardson 2002 BCSC 262.

In Hope v Raeder ( 1994) 2 BCLR (3d) 58 the Court of Appeal held that the word children referred only to biological or adopted children.

The fact that the legislature had not expanded the meaning of the word children beyond natural and adopted children, as it had done in other acts such as the Family Relations act, was found to be a powerful argument against extending the usual meaning.

The Court of Appeal concluded it was not open to the court to expand the class was intended to benefit under the relevant legislation, suggesting that any expansion of the definition of children must be legislated.

Clayton v Markolefas 2002 BCCA 435 stands for the proposition that a child who is the natural child of the testator, but who was legally “adopted out” by an adoptive parent no longer has the status to bring an action under wills variation legislation, as the adoption is “for all purposes”.

In Peri v McCutcheon 2011 BCCA 401 a five-member panel of the Court of Appeal confirmed the law that where a child was in loco parentis with the deceased, but not formally adopted by the testator, was not entitled to bring a claim for a share of the testator’s estate under wills variation legislation.

In Peri the stepchild sought to challenge the will of her biological mother’s husband, which did not make provision for her. DNA evidence established that the testator was not the plaintiffs father, but the plaintiff’s birth certificate and Canadian immigration card indicated that the testator was in fact her father. After her birth. The plaintiff was placed in private foster care and had limited contact with the testator, but the testator did pay for some of her expenses.

The appeal court held that the plaintiff did not fit within the definition of children, but did clearly state that a question of whether it is appropriate for the word children to be expanded to encompass applicants who are not either natural or adopted children of the testator “ is one which should wait a more compelling factual foundation”.

In saran v saran 2015 BCSC 1865, the court ordered special costs against plaintiffs who proceeded with a claim to vary the will when they had been advised that they did not have the standing to bring the action because they were not biological children or adopted children of the deceased.

Wills Variation: Estrangement/Neglect

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.

See also Doucette v Clarke 2007 BCSC 1021.

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.”

BC Wills Variation: Unequal Treatment of Adult Children

BC Wills Variation: Unequal Treatment of Adult Children

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.

Wills Variation: Criteria For Adult Children

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:

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

Wills Variation: Assets Passing Outside Estate Considered

Wills Variation: Assets Passing Outside Estate Considered

The ability of the court to consider assets passing outside of the estate in a wills variation claim and has been recognized since Inch v Stead estate 2007 BCSC 1249.

The court in Inch stated:

“Although inter vivos dispositions, and assets passing as a result of a right of survivorship pass outside the estate and are thus not subject to a claim under the wills variation act, (now Section 60 WESA), the court can consider them when assessing, from the perspective of a judicious person, in the circumstances whether a will maker has met his or her moral obligations.

In today’s world of estate planning many deceased individuals have resorted to using inter vivos gifts are trust, beneficiary designations on their various pension plans and insurance policies, and assets that are held in a true joint tenancy.

All of these types of assets are not in the estate of the deceased and thus are not subject to a wills variation claim as only assets in the estate can be subject to such a claim.

The consideration of non-estate assets, that is assets passing outside of the estate, was approved by the BC Court of Appeal in Ekford v Van Der Woude Estate 2014 BCCA 261, where the court in a short-lived later in life relationship, with previous children from early her relationships, found that the joint tenancy ownership in the matrimonial home that passed to his surviving spouse, was adequate provision to the surviving spouse.

The deceased’s estate was relatively modest and his largest asset was the joint tenancy interest in the matrimonial home in which he and his partner lived. His will made no provision for the spouse, and the court approach the matter in a broad range review of acceptable estate plans.

The appeal court refused to vary the trial judge’s conclusion that given the length of the relationship, the fact that the surviving spouse was not a dependent spouse, and the competing moral claims of his adult children, that the testator’s disposition of his jointly owned assets to his wife was within the wide range of options that could be considered appropriate in the circumstances.

Wong v Cheung estate 2015 BCSC 1741 is another example of a relatively short late in life marriage where the court, carefully took into account assets that were previously owned by each party, what each party contributed to the relationship, and  the $800,000 that passed outside of the deceased’s estate, which was valued at approximately $1.4 million.

The court considered both assets within the estate on the same footing as the non-estate assets.

Despite the fact that the will made no provision for Mr. Wong, he did receive $90,000 as proceeds from an insurance policy, as well as entitlement to a survivor’s pension following his wife’s death.

The court ruled that adequate provision for the claiming husband would have been 25% of the total assets, that is assets that pass through her estate, as well as the assets that passed outside of the estate.

The court also took into account a GIC that the claimant husband owned but which the court found was in fact the matrimonial asset, as well as the insurance proceeds. These proceeds were deducted from his 25% entitlement in the estate, which was $350,000 of the $1.4 million in the estate.

Wills Variation and Marriage/Cohabitation Agreements

Wills Variation and Marriage/Cohabitation Agreements

The issue of the effect of a marriage/cohabitation agreement in a wills variation action was discussed in Brown v Terins 2015 BCSC 775.

The parties lived in a marriage like relationship for 14 years at the time of the deceased’s death.

It was a later in life relationship and each had independent children from earlier relationships.

Ms. Brown moved into Mr. Terin’s home that he had acquired from his parents and where he had lived since 1969.

One year after their cohabitation, the parties entered into a written agreement in which they agreed that the respective wills with director estate to their own children.

Four years after the cohabitation agreement was signed, Ms. Brown and facts executed a will that left her estate to her children. Her partner’s last will was executed nine years after the cohabitation agreement was signed, and he left his estate to his children.

Following his death, Ms. Brown sought variation of his will and the court addressed the cohabitation agreement at paragraph 16 and 17.

The court stated that in short, it is necessary to examine the deceased’s legal responsibility and his or her moral obligation in the full context of the facts as they existed or could’ve been reasonably foreseen by the deceased at the date of his or her death in order to determine whether the surviving spouse has been adequately provided for by the deceased.

A cohabitation agreement ought to receive consideration, but even an agreement that is fair, solemn and well considered is unlikely to be a complete answer to a wills variation claim. (There is ample authority to this effect).

Ultimately the will was varied to require a payment of $500,000 to Ms. Brown from the residue of the estate. This amount represented a share in the increase in value of the home during their relationship, as well as some amount to satisfy a moral obligation.

Accordingly, a list of factors that the court may take into consideration when considering the effect of a cohabitation, or marriage agreement are as follows:

The scope of the agreement

  • the length of the relationship, including when the agreement was signed
  • the fact that the agreement was signed prior to the Family Law act coming into force, such that common-law spouses do not have property division rates
  • whether the agreement was fair and made good sense from both spouses perspectives
  • whether the spouses each had cogent reasons for entering into the agreement, such as accumulating wealth in prior relationships, and each having children from earlier relationships;
  • whether either party had acted consistently with the terms of the agreement
  • the extent to which the spouses had direct involvement in the drafting of the agreement
  • whether independent legal advice was obtained by both spouses
  • whether the surviving spouse had contributed to the deceased’s estate
  • whether the surviving spouse was economically independent prior to, during, and /or after the relationship
  • whether any party of the deceased’s estate arose from his or hers previous spouse’s efforts
  • the extent to which the parties merge their financial affairs
  • his or her expectation of inheritance

See also Howard v . Howard Estate (1997) 32 BCLR for a new earlier discussion summarizing various factors that the court will take into consideration when faced with a marriage agreement in a wills variation claim.

In Howard the court declined to vary the will based on unusual facts, such as the later age at which the parties married, the resulting shortness of the marriage, the fact that they did not become an economic unit and enter into with the relationship of mutual benefits and contribution that usually comes with marriage, the fact that her estate was larger than his, and lastly, the fact that having signed the agreement and made their wills, neither can have any expectation that on the death of the others state that an inheritance would be there.

Wills Variation vs. Family Law Considerations

Wills Variation vs. Family Law Considerations

The wills variation reasons for judgement  in Kish v Sobchak 2016 BCCA 65 discussed the recent intrusion of family/divorce law considerations into the law of wills variation.

Kish reduced the trial judge’s  award made to a surviving spouse from $100,000 downwards to $30,000 with the appeal court commenting that the incorporation of family law guidelines such as the Spousal Support Advisory Guidelines is not appropriate.

The court held that while the leading decision Tataryn v Tataryn Estate (1994) 2 SCR 806 did suggest that guidance in determining the legal obligation to a spouse may be found in the divorce act, family property legislation, or the law of constructive trusts, the appropriate guidance is not a detailed examination of how the couples property would have been divided upon the separation, or how much spousal support would have been payable.

The reason why such calculations are inappropriate in variation cases is because family law analysis are based on the division of property for too spouses who will each be setting up their separate households. While not specifically stated in the Kish decision, the timing in terms of life stages is important. On a separation the spouse still has the ability to build up further assets to be left to his or her heirs.

The court in Kish concluded that an action under the wills variation act( now Section 60 WESA) should not normally become a proxy for divorce proceedings, complete with the elaborate features and special rules applicable to a family law trial.

The Kish decision is consistent with the BC Supreme Court decision of Brown v Terins Estate 2015 BCSC 775 that held that Tataryn directs that the analysis is to be informed by contemporary societal norms, and microscopically examining the details of the transition provisions of the family law act as they apply to common-law spouses is taking the hypothetical exercise too far.

The Court of Appeal in Kish further addressed that in late life relationships, and the resulting shorter expected life span of the remaining spouse, the court confirmed that the variation of a will is not for the purpose of creating an estate for the claiming spouse, relying on prior case law that stated “it is not the purpose of the wills variation act to enable an applicant to build up in a state of his or her own, but rather to ensure that he or she is appropriately maintained and supported during his or her lifetime.”

Wills Variation: Moral Duty of Long Time Spouses

Wills Variation: Moral Duty of Long Time Spouses

In the leading case Tataryn v Tataryn ( 1994) 2 SCR 806 the court stated that most people would agree that although the law may not require a supporting spouse to make provision for a long time dependent spouse after his or her death, a strong moral duty to do so exists if the size of the estate permits.

Similarly, 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.

The moral claim of an independent adult child may be more tenuous, but a large body of case law exists suggesting that if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made.

Some cases, such as Bell v Roy 75 BCLR (2d) 213 BCCA is representative of a line of cases where the moral duty was seen to be negated.

In Bridger v Bridger estate 2006 BCCA 230 the appeal court discussed the claims of adult children vis-à-vis the claim of a long-term spouse.

The court  recognized that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults.

There may be a number of options for dividing assets by a testator which are adequate, just and equitable, but the court held that they do not include a disposition that entirely prefers the moral claims of adult independent children to those of a loyal spouse who provided care for the testator over years of debilitating decline.

The legal obligation under wills variation legislation can be quantified in terms of what would the deceased have received in terms of the legal division of assets if he or she had divorced the day before death.

The question then becomes the measure of the outstanding moral obligation.

In Picketts v Hall Estate 2009 BCCA 329 a long-term common-law spouse received a substantial award from the large estate of her spouse, and the court observed that “it is not a viable option for the court to approve a disposition that substantially prefers the moral claims of adult independent children to those of a long-term, caring and dedicated spouse”.

What complicates the division of assets between adult children and spouses in wills variation claims is where the relationship between the parties occurs late in life after each had become self-supporting, had children, accumulated their own assets and took particular care to keep their finances separate and benefit his or her won children rather than each other.

Wills Variation: Themes of Tataryn v Tataryn

Wills Variation: Themes of Tataryn v Tataryn

Kish v Sobchak 2016 BCCA 65 heard by a panel of five judges, took an opportunity to revisit the origins of wills variation legislation in British Columbia, and to provide guidance on past themes and emerging trends.

The plaintiff Kish was 72 years of age and had suffered from dementia for approximately 8 years. She was incapable of managing her affairs, resided in a mostly province paid facility, and had a wills variation action brought by her son as her litigation Guardian.

Kish and the deceased had a dating romantic relationship for about 22 years, as each had earlier marriages and children, and each had amassed their own capital prior to the commencement of their relationship.

During their time together they made a concerted effort to keep their finances separate, file tax returns describing themselves as single, and each maintain their own house.

Each party created estate plans in which they each gifted their assets to their own children or grandchildren. Their estates were approximately the same size as one another. At least one of the parties had repeatedly expressed his desire never to remarry or be in a marriage like relationship.

At trial, the judge found that they were in a marriage like relationship and awarded the surviving spouse Kish the sum of $100,000.

The Court of Appeal reduce that award to $30,000 quoting inter alia, the decision of  Frolek v Frolek (1986) No. 1869 BCSC that it is not the purpose of the wills variation act to enable an applicant to build up an estate of his or her own, but rather to ensure that he or she is approximately maintained and supported during his or her lifetime.

The trial judge acknowledged the deceased explanation contained in a memorandum to his codicil, that he considered he had met his duty to Ms. Kish, in part “ because he understood she had her own assets and income to the extent that she did not need any part of his estate”.

The judge did however find that his belief was erroneous, and that Ms. Kish was in need.

In reducing her award to $30,000, the court reviewed the principles of the leading decision Tataryn v Tataryn (1994) 2 SCR 806 will and emphasize the following themes:


  1. Search for contemporary justice- the Kish analysis excerpts three paragraphs from Tataryn on this theme;


  1. There is no one right answer- the wills variation act ( now. Section 60 WESA) 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. There will be a wide range of options, any of which might be considered appropriate in the circumstances. When reviewing the facts of any case in light of the current societal expectations, there are many options, it could be considered adequate in the circumstances. It is only where the provision made falls as outside of that range that the court will interfere;


  1. The importance of testamentary autonomy- through the lens of modern values and expectations, the parties wishes remain an important consideration . In the Kish case both parties wish to keep their finances separate and to provide for their own children. This is a common desire amongst couples who met later in life and have have children from earlier relationships. The Court of Appeal held the testamentary atoning in this case was in fact in line with contemporary community standards. Many today would find it unfair or inappropriate to disregard the wishes of both parties that their modest estates, built up through their own individual aspirates, should be their own, and that the respective children should benefit exclusively therefrom.