The BC Court of Appeal in Kish v Sobchak 2016 BCCA 65 reviewed the discretion of the trial judge in a wills variation claim and how that discretion should be exercised.

The Facts:

A woman and the testator were in a relationship for over 20 years, but kept their finances separate and did not wish to be married. After the woman develop memory problems, the testator rented out his house to his brother and moved in with the woman, and became her full-time caregiver.

The testator developed cancer and executed a new will, leaving the estate to only his daughter who was a single mother of three.

The woman executed a new will leaving her estate to her son and grandson.

The woman became incompetent and was placed in a care facility.

The testator died and left his estate of just under $200,000 and his daughter who also received $250,000 outside of the will.

The mother’s son brought a successful action on her behalf under the wills variation act.

The trial judge found that the woman and testator were in a marriage like relationship, that the woman was his spouse for the purposes of the act, the testator had a moral and legal obligation to the woman and failed to adequately provide for her in his will.

The woman was awarded $100,000 and on appeal the award was reduced to $30,000.

The appeal court found that while the testator would have some legal obligation to support the woman during his lifetime, the testator and the woman clearly wished to benefit his and her own children to the exclusion of each other.

It was inappropriate to disregard the express wishes that modest estates, built up through their parties individual effort should be their own, and that the respective children should benefit exclusively therefrom.

A parties particular circumstances and relationship with strongly in favor of respecting testamentary autonomy. And the trial judge should have given more weight to that principle.

The Exercise of Judicial Discretion in Wills Variation

The court examined, discretion and held that the line between the exercise of judicial discretion and the finding of facts is not easy to enunciate.

A judge has no discretion in making his or her findings of fact, and has no discretion in his or her rulings on the law.

But when having made any necessary finding of fact the necessary ruling of law, the judge has to choose between different courses of action, orders, penalties or remedies that he or she then exercises the discretion. It is only when he or she has reached the stage of asking him or herself. What is the fair and just thing to do, or order in the instant case that embarks on the exercise of a discretion.

A judge must exercise judgment, not discretion in finding the facts, and is usually the most difficult and often most exacting task which the civil trial judge has to undertake.

The standard of review applicable in Canada to the exercise of judicial discretion is found in Friends of the Oldman River Society v Canada (Minister of Transport) (1922) 1 SCR 3:

“ The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves of exercised the original discretion, headed attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been her wrongful exercise of discretion in that no wait, or no sufficient weight, has been given to relevant considerations such as those urge before us by the appellant, then the reversal of the order on appeal may be justified..”

A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounta to an injustice. Elsom v Elsom (1989) 1 SCR 1367 at p.1365