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.

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