Trevor Todd and Jackson Todd have over 65 years combined experience in handling wills variance cases.
There are surprisingly few reported decisions in BC relating to the outcome of disabled children, young and adult and Wols v Funk 2026 BCSC 404 is a good decision in favour of an adult disabled child of the deceased parent, MR. WOls.
His child and son Gerry Gerry, born in 1961, is currently 64 years of age. Gerry lives with multiple disabilities and has never been capable of managing his own affairs or protecting his own legal or financial interests. Gerry has also never lived independently and lives with significant cognitive impairment.
Gerry has a formal diagnosis of global developmental delay, autism spectrum disorder and bipolar affective disorder. Gerry’s diagnoses collectively impact, without limitation, his ability to communicate, follow routines, and express basic needs such as hunger, thirst or discomfort. Gerry is no longer ambulatory and requires a wheelchair.
He brought an action with the assistance of the Public Guardian and Trustee for a variation of his late father’s will.
Gerry lived in a community based assistance residence the previous 17 years of his father’s life. His mot predeceased and was bed ridden for many years due to several afflictions.
The value of the estate was $486,000 and the will provided as follwos:
Pursuant to the Will, George directed that the Estate be distributed as follows:
- a)to provide Gerry with the lesser of $120,000 or one‑half of the residue of the Estate and to provide a single life annuity which would provide for a three‑year guarantee of payment for Gerry’s benefit during his lifetime; and
- b)to divide the residue of the Estate equally between Mr. Funk and Mrs. Funk.
The specific bequest to Gerry amounts to approximately 25 percent of the Estate.
No reasons were stated for the distribution scheme of the will.
The defendant’s Funk were an elderly couple in their early 80’s and met the Wol family initially as a housecleaner and they became friends over the years.
Mr. Wols paid them $300 to further assist Gerry with activities and needs although the court found that the Funks did not have a particularly close relationship with Gerry.
The Court furthermore stated that since the Funk’s had been appointed the attorneys for George through a power of attorney they should not have been expected to be paid to assist with Gerry’s health.
THE LAW
The Funk’s argued at trial that the bequest to Gerry was sufficient to meet his needs and the will should not be varied.
Moral norms are the reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards: see Tataryn at para. 28.
[69] Legal and moral obligations owed by a deceased to his spouse or children are relevant to the determination of whether adequate provision in a will have been made. Alleged legal or moral obligations to other persons (whether they be siblings, other relatives or unrelated acquaintances of the deceased) do not qualify for consideration: see Tataryn at paras. 31‑32; Scurek v. Scurek, 2020 BCSC 450 at para. 144; and Geluch v. Geluch Estate, 2019 BCSC 2203 at paras. 166‑170.
[70] Courts have generally not hesitated to recognize an enhanced moral obligation to a child with a disability relative to the moral obligation owned to an independent adult child, the latter of which has been described as “more tenuous”: see Tataryn at para. 31.
[71] It is not an answer to a claim under s. 60 of WESA to assert that a deceased individual considered his or her testamentary intentions or that he or she had received advice and knew what they were doing where, on an objective basis, the court concludes that a deceased was not acting in accordance with society’s reasonable expectations of a judicious parent (or spouse). In those circumstances, a will should be varied accordingly: see Deutschmann v. Fallis, 2010 BCSC 2031 at para. 37 citing Clucas v. Clucas Estate (1999), 25 E.T.R. (2d) 175 at para. 12.
[72] In Tataryn, McLachlin J. (as she was then) stated the foregoing this way at para. 17:
The other interest protected by the Act is testamentary autonomy. The Act did 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 provide the latter with what was “adequate, just and equitable in the circumstances.” And if that testamentary autonomy must yield to what is “adequate, just and equitable”, then 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”. [Emphasis in original.]
[73] The relevant date for determining whether the will‑maker has made adequate provision for the proper maintenance and support is the date of death: see Bautista v. Gutkowski Estate, 2023 BCSC 1485 at para. 42 citing Eckford v. Vanderwood, 2014 BCCA 261 at para. 50.
[74] What is just and equitable is not to be determined on a “needs‑based” test. The object of WESA is to ensure that a spouse or a child received an “adequate, just and equitable share” of the will‑maker’s estate even in the absence of demonstrated need. What constitutes adequate provision is a question that involves consideration of many factors and is not limited to what will provide the bare necessities for the plaintiff: see Tataryn at paras. 16, 19, 24.
[75] In exercising its discretion under WESA, the court should not focus on the minimum required to provide a child with amenities over and above the basic level of care afforded by government funding. A will‑maker’s obligation is not satisfied or diminished by the availability of funding through government programs or agencies. Further, the courts must be cognizant of the reality that the availability of government or charitable funding is not guaranteed: see Barnsley v. Barnsley, (1996) 142 D.L.R. (4th) 335 (B.C.S.C.) at paras. 26‑28 and Newstead v. Newstead Estate, 1996 CarswellBC 262 (S.C.) at paras. 82‑85.
[76] Finally, in Dunsdon v. Dunsdon, 2012 BCSC 1274 at para. 134, Justice Ballance set out a non‑exhaustive list of factors which inform the existence and strength of a parent’s moral obligation:
- relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
- size of the estate;
- contributions by the claimant;
- reasonably held expectations of the claimant;
- standard of living of the testator and claimant;
- gifts and benefits made by the testator outside the will;
- testator’s reasons for disinheriting;
- financial need and other personal circumstances, including disability, of the claimant;
- misconduct or poor character of the claimant; and
- competing claimants and other beneficiaries[.]
Caselaw Regarding Wills Variation: Specific Examples
[77] The plaintiff directed the Court to two specific cases which it is submitted are somewhat factually analogous (albeit involving situation where there were multiple adult children of the deceased and not a sole adult child like Gerry).
[78] The first is Deutschmann. In Deutschmann, the deceased‘s will provided his 64‑year‑old daughter who had a disability with a life estate in a basement suite in the former family home so that she would have the security of a residence for so long as she could maintain it. When the daughter was no longer able to maintain the home, the will directed that the property be sold and the proceeds divided among the deceased’s three other adult children to the exclusion of the disabled daughter. The daughter, who had moved into a group home, received government benefits and no other sources of income. The value of the estate was $500,000 (very close to the value of the Estate in issue here).
[79] In deciding Deutschmann, Justice Voith considered the daughter’s claim as against the competing moral claims of the deceased’s other three adult children. In concluding that the deceased recognized his moral duty to his daughter but failed, by the terms of the will to discharge that duty, Voith J. made the following statements which are applicable here:
- a)The needs based approached was rejected by the Supreme Court of Canada in Tatarynand therefore the fact that a claimant received government benefits is not a defence to a claim under WESA: see paras. 39‑40;
- b)The fact that a claimant’s basic needs are addressed by the state does not determine a disabled child’s need for support from his/her parent: see para. 41; and
- c)A will‑maker may have a moral obligation to make an increased or enhanced provision for a child with disabilities.
[80] In the result, the plaintiff in Deutschmann was awarded an equal one‑quarter interest in the balance of the estate along with her three siblings: see para. 46.
[81] The second decision is Barnsley. In Barnsley, Sarah, who had a disability, was one of four adult siblings. Somewhat unusually, Sarah had never been raised by the deceased (or her mother who was the second wife of the deceased). Instead, Sarah had been placed into foster care as an infant with the Fisher family and had remained living with the Fisher family throughout her childhood pursuant to a permanent guardianship order. (Sarah had aged out of care by the time of the litigation but still resided with and required the full‑time care of the Fisher family). Sarah was not adopted by the Fisher family as they were not in a financial position to do so as that would have terminated the benefits that the Fisher family received to support and care for Sarah.
[82] In concluding that Sarah was entitled to a greater share of the deceased’s estate than that of her three siblings despite all having a moral claim on the estate, the Court recognized that there was an enhanced moral duty owed to Sarah, as a child with a disability, even though she was in receipt of government benefits.
[25] Neither Sarah, nor any of her custodians or caregivers, ever did anything to justify the testator disinheriting her. The support from the state which Sarah receives is of a basic level. There are other goods and services which would be of benefit to her. These include speech language treatment and life skills training. There are numerous other expenditures which would promote her independence. It is unfortunate that Sarah has thus far received few of these “discretionary” benefits. I am of the view that she has a strong moral claim against her father’s estate for the future funding of such benefits.
[26] There is, as well, the ongoing concern that Sarah’s present care funding is not guaranteed. It is subject to review and decree.
[27] The testator’s other three children are of good health. They are financially independent. They were close to the testator. All received some advances from the testator during his lifetime. The testator’s two oldest children, in turn, financially assisted him when he was in need. The testator’s making provision for them in his will is just and equitable. The testator’s disinheritance of Sarah is not. The testator’s decision to disinherit Sarah fell below his obligations to her as defined by reference to moral norms. The application made on Sarah’s behalf must succeed.
[28] All four of the testator’s children have a moral claim on his estate. At the time of the testator’s will and death, none of the four children were financially dependent on him. Although Sarah is supported by the state, that support is not guaranteed. Neither is the income or support enjoyed by the testator’s other three children. Nevertheless, an “adequate, just and equitable” order requires that Sarah receive more than the other three of the testator’s children. Sarah’s needs are greater. She did not receive the benefit of any advances during the testator’s lifetime.
Decision
The will was varied to give Geryy %80 of the residue of the estate:
To divide the balance of the capital and income of my Net Estate then remaining (hereinafter my “Residuary Estate”) and:
(1) To pay or transfer eight (8) of those equal shares of my Residuary Estate to my son, Gerald David Wols;
(2) To pay or transfer two (2) of those equal shares of my Residuary Estate equally to Mary Funk and Ewald Funk, or the survivor of them
