The BC Court of Appeal in the decision Tom v. Tang 2023 BCCA 221 is a significant wills variation case .
The deceased left valid and factually rational true reasons for leaving 85% of her estate to two of five children, but the court held that the test is one of the objective judicious parent as to whether the parents moral obligation had been met.
The appeal court upheld the variance of the will where the two major beneficiaries shares were reduced to 30% each, while the other three remaining children each received 13 1/3%.
The parent had left a will in which she stated that 85% of her estate was going to two of her children as they provided her care in the last three years of her life.
The trial judge varied the will and the appeal court upheld that distribution. The appellants argued that the testator’s wishes should be respected as she had valid and rational reasons for the distribution that she made.
The respondents successfully argued that the test should be one of the objective judicious testator.
The appeal court clarified that previous significant decisions such as Bell v Roy (11993) 75 BCLR (2d) 213 Hall v hall 2011 BCCA 354 and Kelly v baker (1996) 82 BCAC 150 and the perceived conflict between those decisions and the Supreme Court of Canada’s Tataryn v Tataryn Estate ( 1994) 2 SCR 807.
The court held that the aforesaid Bell, Hall, and Kelly cases do not stand for the principle that a testator’s unequal treatment of adult children must be deferred to if the reasons given for the unequal distribution, or valid and rational. Those cases read in context recognizes the testator’s moral duty to adult children must be assessed using the objective standard of the reasonable testator, and provide that the moral duty may be negated where there is just cause.
In the Tom v Tang decision the court held that the testator did not meet the objective standard of a judicious parent, given that each child had a significant moral claim arising from their contributions to the family economy.