Wills Variation- Child Awarded %50

Adult Child's Share In Will Doubled to 50% For Invalid Reasons

Share In Will Doubled to 50% For Adult Child Under Wills Variation Act

Schipper v. Schipper Estate 2010 BCSC 1067

The Plaintiff adult daughter was only child of the testator and her husband. The daughter had very close relationship with her parents until about three years before the testator’s death. The Testator’s will gave 25 per cent of estate to the daughter, 50 per cent to an adult nephew J, and 25 per cent to adult nephew A ..

The Testator’s rationale was that daughter had not visited her for three years, had not shown interest in her parents, and was not in need of financial assistance .The daughter brought action for variation of testator’s will under Wills Variation Act to make adequate provision for her and the action was allowed. The daughters share was increased to %50 with J receiving 2/3 of the remaining and one third of the remaining to nephew A. Daughter found to be loving ,faithful child.The daughter’s claim was not based on financial need as her combined assets with her husband were $980,000.

The sufficiency of reasons for disinheritance was taken as part of the question of whether reasons of the testator were rational . The testator overreacted to perceived lack of interest by daughter .the testator had little factual information about daughter’s financial need .The reasons expressed by testator for making dispositions were not rational , nor did they provide a proper basis for supporting provision made. The reasons did not have logical connection with reduced inheritance.

16 A useful summary of the legal principles applicable to cases of this nature is set out in the reasons for judgment of Madam Justice Satanove, now Madam Justice Kloegman, of this court in Clucas v. Clucas Estate, [1999] B.C.J. No. 436(B.C. S.C.), at para. 12:

Many cases have been decided under the Wills Variation Act. The considerations governing the court’s decisions have evolved over time and there is a fairly comprehensive set of competing principles to which effect must be given. I have endeavoured to summarize these as follows:

1. The main aim of the Act is the adequate, just and equitable provision for the spouses and children of testators. (Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807)

2. The other interest protected by the Act is testamentary autonomy. In the absence of other evidence a Will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only insofar as the statute requires. (Tataryn, supra)

3. The test of what is “adequate and proper maintenance and support” as referred to in s. 2 of the Act is an objective test. The fact that the testator was of the view that he or she adequately and properly provided for the disinherited beneficiary is not relevant if an objective analysis indicates that the testator was not acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards. (Tataryn, supra; Walker v. McDermott, [1931] S.C.R. 94; Price v. Lypchuk Estate(1987), 11 B.C.L.R. (2d) 371 (C.A.); Dalziel v. Bradford et al.(1985), 62 B.C.L.R. 215 (B.C.S.C.))

4. The words “adequate” and “proper” as used in s. 2 can mean two different things depending on the size of the estate. A small gift may be adequate, but not proper if the estate is large. (Price v. Lypchuk Estate, supra)

5. Firstly, the court must consider any legal obligations of the testatrix to her spouse or children and secondly, the moral obligation to her spouse or children. (Tataryn, supra)

6. The moral claim of independent adult children is more tenuous than the moral claim of spouses or dependent adult children. But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made. (Tataryn, supra)

7. Examples of circumstances which bring forth a moral duty on the part of a testator to recognize in his Will the claims of adult children are: a disability on the part of an adult child; an assured expectation on the part of an adult child, or an implied expectation on the part of an adult child, arising from the abundance of the estate or from the adult child’s treatment during the testator’s life time; the present financial circumstances of the child; the probable future difficulties of the child; the size of the estate and other legitimate claims. (Dalziel v. Bradford, supra and Price v. Lypchuk, supra)

8. Circumstances that will negate the moral obligation of a testatrix are “valid and rational” reasons for disinheritance. To constitute “valid and rational” reasons justifying disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance. (Bell v. Roy Estate(1993), 75 B.C.L.R. (2d) 213 (B.C.C.A.); Comeau v. Mawer Estate, [1999] B.C.J. 26 (B.C.S.C.); and Kelly v. Baker(1996), 15 E.T.R. (2d) 219 (B.C.C.A.))

9. Although a needs/maintenance test is no longer the sole factor governing such claims, a consideration of needs is still relevant. (Newstead v. Newstead(1996), 11 E.T.R. (2d) 236 (B.C.S.C.))

17 With respect to consideration of the ascertained reasons given by a testator either as set out in a written statement or as found by the court, in McBride v. McBride Estate, 2010 BCSC 443(B.C. S.C.), upon a careful review of the applicable legal authorities, Madam Justice Ballance noted as follows:

135 The approach to be taken by the court in relation to a testator’s reasons for disinheriting or providing a modest benefit only to a child starts with consideration of the Court of Appeal decision in Bell v. Roy Estate(1993), 75 B.C.L.R. (2d) 213, 48 E.T.R. 209 (C.A.)[Bell]. In Bell, the testator left a will under which she bequeathed a small gift to one adult son, nothing to her adult daughter, and left the lion’s share of her estate to her other adult son. Contemporaneously with making her will, the testator wrote a separate letter purporting to explain the unequal treatment of her children, and in particular the disinheritance of her daughter. The trial judge concluded that the reasons offered by the testator for disinheriting her daughter were accurate and sufficient to support the will. Accordingly, variation of the will was refused. The Court of Appeal’s dismissal of the daughter’s appeal came before the Supreme Court of Canada issued its decision in Tataryn.

136 In his analysis in Bell, Goldie J.A., for the Court, placed heavy reliance on the post-Walker legislative amendments to the Act enacted in 1971 (now s. 5), which permit the court to accept evidence of the testator’s ascertainable reasons for making or not making the dispositions in the will relative to his or her spouse and children. That section stipulates that where such evidence is in the form of a written statement signed by the testator as in Bell, the court, in weighing the statement, must have regard to all of the circumstances which may reasonably support an inference about the accuracy or otherwise of it.

137 In addressing those statutory amendments, Goldie J.A. stated, at para. 38:

38 … the weight to be given evidence of the testator’s reasons is affected by its accuracy and not by morally acceptable or unacceptable content. I do not say the legislature swept away any objectively determined moral duty. I do say, however, that the actual intentions of the testator are to be given an effect which is largely denied by reliance upon the notionally objective reasonable testator.

138 In Bell, the Court of Appeal held that where financial need is not a factor, if the court finds that the testator’s reasons purporting to explain a disinheritance are valid and rational, the testator’s moral duty in respect of that child is negated. The Court held that the burden then shifts to the plaintiff to show that the reasons acted upon by his or her parent were false or unwarranted.

139 Goldie J.A. acknowledged that this approach placed greater emphasis on a testator’s intentions and “less on those which might be imputed to her by reference to the reasonable testator” (para. 36). He endorsed giving effect to a testator’s subjective rationale which would be “largely denied” by employing an objective reasonable testator standard.

140 The Court of Appeal reaffirmed the Bell model after Tataryn was decided at the Supreme Court level. In Kelly v. Baker(1996), 82 B.C.A.C. 150, 15 E.T.R. (2d) 219 (C.A.)[Kelly], the Court of Appeal applied the Bell analysis and concluded that the testator had valid and rational reasons for disinheriting the claimant. As to the content of the reasons, Kelly stated that the testator’s reasons for disinheriting a child need not be justifiable. The Court observed that the law merely requires that the reasons are valid, meaning based on fact, and rational in the sense that there is a logical connection between them and the act of disinheritance (para. 58).

141 One cannot quarrel with the outcomes in Bell and Kelly in light of their particular facts. The thorny issue is that the model of inquiry endorsed by Bell and followed in Kelly effectively precludes an assessment of whether the testator’s reasons are objectively justifiable from the standpoint of the contemporary judicious parent of Tataryn. In Tataryn, McLachlin J. made passing mention of Bell as an example of a case where a testator’s moral duty was seen to be negated. Notably, she did not say nor delve into whether the proposition espoused by Goldie J.A. to negate that moral duty was sound. If the decisions of Bell and Kelly mean that the applicable test is whether a testator has valid (i.e. factually true) and rational (i.e. logically connected to the disinheritance) reasons for disinheriting a child, even where the reasons are unworthy of an objectively judicious parent based on contemporary standards, then they are difficult to reconcile with the fundamental precepts of Tataryn and the search for contemporary justice in the circumstances.

142 For the most part, the apparent incompatibility between Bell and Kelly on the one hand, and Tataryn on the other, has not been squarely confronted by this Court (an exception is found in Hammond v. Hammond(1995), 7 B.C.L.R. (3d) 25, 7 E.T.R. (2d) 280 (S.C.)). I would respectfully observe that there appears to be a growing trend in the authorities decided in the aftermath of Kelly to favour rejection of objectively insufficient reasons on the pretence that they are simply not rational.

18 Therefore, on that basis, sufficiency of the reasons may be taken as part of the question of whether the reasons of the testator are rational. I agree with this approach.

19 In the recent decision of the Court of Appeal in Graham v. Chalmers, 2010 BCCA 13(B.C. C.A.), Madam Justice Kirkpatrick held that the first question of whether the will makes adequate provision for the claimant under the statute is to be decided without regard to the claims of others who have no claim under the statute. She said as follows at paragraph 38:

38 In approaching the analysis in this way, I consider that the trial judge erred in two ways. First, she failed to first consider whether the Will made adequate, just and equitable provision for Janet Graham regardless of the claims of the grandchildren who were not owed any legal or moral obligations under the Act, but whose claims should be met in deference to testator autonomy after the moral claims were met. Second, the trial judge appears to have analyzed Janet Graham’s claim on the footing that she was presumptively entitled to a 50% share of the estate, rather than considering whether the Will made a bequest within a range of appropriate options.

77 Counsel provided me with a number of useful authorities relating to the decisions in other cases, which it is argued, have some similarity to this one, and which I have had the benefit of considering. In the interest of brevity I will not refer to them. I will refer simply to one of the decisions. That is the decision of Mr. Justice Williams of this court in Smith v. Smith Estate, 2009 BCSC 1737(B.C. S.C.). At paragraph 75, Mr. Justice Williams says:

It is a trite observation that each fact pattern, like each snowflake, is unique. None will be exactly like any other, and the subtle (and not so subtle) differences and distinctions will inform the ultimate outcome.

78 I pause to note that that comment from Justice Williams was following on a review of a number of authorities.

79 Going on with the decision in Smith v. Smith Estate, at paras.

76-77 Mr. Justice Williams says:

76 I conclude that where adult children advance a moral claim for inheritance, the merit of such a claim will be assessed in light of a number of considerations. These may include the nature of the relationship between the parent and the child, the ability of the estate to afford a bequest to the child (which in turn implicates an assessment of the other competing claims) and the financial circumstances of the claiming child, the plaintiff.

77 Obviously there will be other considerations as well. Ultimately, the court is required to make a judgment, often a difficult one.

80 I recognize that the plaintiff is an independent adult, and therefore, in accordance with the authorities, the moral claim of the plaintiff is more tenuous than that of spouses or dependent children. However, I view the provision made as inadequate.

81 Most significantly, the plaintiff was the only child of the testator. She was a faithful, loving and dutiful child, notwithstanding the apparent slight chill in the relationship over the final few years. There are no other claimants to whom a moral duty is owed under the statute. As some evidence of the standard that should be considered, I note that under the intestacy provisions of the Estate Administration Act, R.S.B.C. 1996, c. 122, the entire estate would pass to the plaintiff. In one of the letters from her mother, in 1988, her mother had said that she, that is the plaintiff, was their sole heir. This would continue to be a not unreasonable expectation on the part of the plaintiff, after perhaps some bequest in favour of Jacob De Lange.

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