Son Awarded %50 of Estate Under Wills Variation Act

Fortune cookieA will that had left the entire estate of $366,000 to the deceased grandchildren, was varied pursuant to the wills variation act to award the disinherited sole child of the deceased 50% of the estate, with the remaining 25% to each defendant grandchild.   see McEwan v McEwan 2014 BCSC 916

The deceased died at 98 years of age leaving one child which he disinherited.  The  deceased and his son initially had a good relationship but saw each other less and less after the plaintiffs mother died in 1975, due to the fact that the plaintiff did not get along with  his father’s new partner .the deceased transferred into joint  ownership an  investment account of approximately $329,000 which was upheld as a valid gift by the court .

The court however found that the remaining monies left in the estate in the amount of  $366,000  left to the same grandchildren under his will  should be varied  in favor of the plaintiff in the amount of 50% , by reason of the deceased’s failure to  satisfy his moral obligation to provide for his  disinherited son .

The plaintiffs solution to the antagonism between he and his father’s new partner was to remove himself from their relationship.  the deceased knew about these difficulties and  communicated his views concerning the plaintiff to the lawyer who prepared the will and he blamed the plaintiff for the disagreements with his partner .

They will instructions indicated that the plaintiff  was blamed by the deceased for the  disagreements,  since it was easier to blame the son  that was absent then to blame is continuing partner .

The court found that although the plaintiff had some responsibility for his pardon the estrangement from the deceased, objectively both the father and the son ha contributed to the estrangement, and the estrangement  estrangement did not justify the deceased disinheriting and son and did not engage his moral duty to provide for his son.


The Court also took into account the monies left to the same grandchildren outside of the estate.



Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, is the leading decision in this area of the law.  On an application to vary a will, “[t]he court must ask itself whether the will makes adequate provision and if not, order what is adequate, just and equitable.  These are two sides of the same coin.”  See Tataryn, at p. 814.  “Adequate, just and equitable” is determined in the specific circumstances and in light of contemporary standards:  see Tataryn, at pp. 820-821 and Graham v. Chalmers, 2010 BCCA 13, at para. 29.

[77]         Against this consideration is balanced the principle of testamentary autonomy.  However, testamentary autonomy must ultimately yield to what is “adequate, just and equitable.”  See Tataryn, at pp. 815-816.

[78]         The test of what is “adequate, just and equitable” 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 circumstances, by reference to contemporary community standards.  See Inch v. Battie, 2007 BCSC 1249, at para. 65 and Clukas v. Clukas Estate (1999), 25 E.T.R. (2d) 175, 1999 CanLII 5519 (B.C.S.C.), at para. 12.

[79]         A claimant under the Wills Variation Act is not required to prove need as a condition precedent for variation of a will:  see Tataryn, at pp. 816  and following.

[80]         Under the Tataryn analysis, the court must first consider the testator’s legal responsibilities to support a spouse and minor or dependent children.  That is not a consideration here.

[81]         The second consideration is the testator’s moral duties toward his or her spouse and children.  Where, as here, the moral duty may be toward independent adult children, McLachlin J. (as she then was) explained in Tataryn, at pp. 822-823:

[M]ost people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow.  While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made.

[82]         McLachlin J. elaborated further, at pp. 823-824:

In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable.  In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances.  Provided that the testator has chosen an option within this range, the will should not be disturbed.  Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve.  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 in so far as the statute requires.

[83]         In this case, the only person to whom Angus owed any moral duty was his son, Malcolm.  He owed no legal or moral duty toward his granddaughters.

[84]         The first question to be asked in this case is whether the 2003 Will made adequate, just and equitable provision for Malcolm.

[85]         In closing submissions, Ms. Simmons (on behalf of the defendants) conceded that, by not making any provision for Malcolm in the 2003 Will, prima facie Angus did not make adequate provision for Malcolm.  Accordingly, the court may consider what would be an adequate, just and equitable provision in the light of all of the circumstances.

[86]         Ms. Simmons argues that, in the light of all of the circumstances, Angus had a valid and rational reason to disinherit Malcolm.  In her submission, based on Malcolm’s evidence, he abandoned Angus when he was suffering mistreatment at the hands of Doris and had no further contact with him.  Ms. Simmons submits that contemporary community standards dictate that children care for and support their parents as they age, and that adult children have a responsibility to keep aging parents safe and to provide them with assistance and support.  Ms. Simmons argues that Malcolm did not fulfill his obligations to his father and, based on Malcolm’s evidence, he failed to ensure that Angus was living in a safe environment.  Therefore, in Ms. Simmons’s submission, Malcolm’s conduct toward Angus fell far below contemporary community standards for parental care.  She argues that, in the circumstances described by Malcolm and to which he abandoned Angus, an “adequate, just and equitable provision” for Malcolm is to disinherit him entirely, and Ms. Simmons says that the court should not interfere with Angus’s testamentary wishes.

[87]         However, Ms. Simmons also submits that Malcolm’s evidence is not credible and that his evidence in particular about the incident Malcolm described where Doris came at Angus and him with a knife, and Malcolm’s response, is not rational.

[88]         I have concluded that Malcolm’s evidence to the effect that Angus was being regularly mistreated and physically abused by Doris is not reliable, and it cannot provide an acceptable basis for Angus disinheriting Malcolm.

[89]         I contrast Malcolm’s evidence concerning the relationship between Angus and Doris with Karlynne’s evidence.  Beginning in 1995, Karlynne was in regular contact with both Angus and Doris, including in their home.  She was cutting Angus’s hair every four to six weeks.  If Angus was being physically mistreated by Doris, Karlynne was in a position to see it.  Yet, there is no evidence she ever saw anything of the sort.  Rather, she described Angus and Doris (at least up until Doris’s Alzheimer’s diagnosis) as a “cute couple,” affectionate with one another and good company for one another.

[90]         Based on that evidence, I conclude that Malcolm did not abandon his father to an abusive relationship.  Rather, Malcolm and Doris had a high degree of animosity toward one another, and Angus was caught in the middle.  On the evidence, once Angus and Doris became a couple (and especially after they moved to Victoria), Malcolm’s presence in Angus’s life resulted in Doris becoming very agitated, and I conclude that when Malcolm and Angus were together, Malcolm saw the effects of this.  However, the effects were temporary.  Once Malcolm was gone, Angus and Doris again became the “cute couple” Karlynne described.  There was no indication that Angus was going to, or wanted to, end his relationship with Doris.  Malcolm’s solution to the antagonism between Doris and him was to remove himself.  It could be said that he took extreme and unusual measures to remove himself, but although that was not the only course possible, that was the course he adopted.

[91]         Angus knew about the difficulties between Malcolm and Doris and communicated his views concerning Malcolm to Mr. Carson when giving Mr. Carson instructions concerning the preparation of the 2003 Will.  At that time he blamed Malcolm for the disagreements with Doris.  Angus was certainly entitled to express his opinion, but rarely is one party to an unhappy relationship 100% to blame.  The instructions Angus gave to Mr. Carson show that Angus was reluctant to place any blame on Doris; it was easier to blame his absent son.  Although Malcolm must accept responsibility for his part in his estrangement from Angus, I would say that, objectively, both Angus and Doris also contributed to Malcolm’s estrangement from his father.  When, in the last months of Angus’s life, Malcolm expressed a wish to see his father, Angus turned him away.

[92]         Ms. Simmons cites Kelly v. Baker (1996),15 E.T.R. (2d) 219, 1996 CanLII 1596 (B.C.C.A.) in support of her argument that, provided Angus had valid and rational reasons – valid in the sense of being based on fact; rational in the sense that there is a logical connection between the reasons and the act of disinheritance – his testamentary wishes should be respected.

[93]         In my opinion, the analysis cannot be so straightforward, based on Tataryn.  I agree with Madam Justice Ballance’s observation in McBride v. Voth, 2010 BCSC 443, at para. 141, where she comments on Kelly and on Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (C.A.), also cited by Ms. Simmons.  Madam Justice Ballance says:

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.

[94]         I do not read either Bell or Kelly as meaning that the applicable test is whether the testator has valid and rational reasons for disinheriting a child, as that test would, in my view, be incompatible with the principles set out in Tataryn.  I note that in Inch (another case cited by Ms. Simmons on this point), A.F. Wilson J. did not stop his analysis with his findings that the testator had valid and rational reasons for her treatment of the claimant, but went on to consider other circumstances before reaching a conclusion on the question of whether the provisions in the will were adequate.

[95]         It is true that Malcolm and his father were estranged.  It is true that Malcolm was not looking after Angus in the last decade of Angus’s life.  However, Malcolm was struggling to look after himself.  Had Malcolm provided the kind of care and attention for Angus that Karlynne did, especially after Doris died, that would have intensified his moral claim on Angus’s estate.  However, I am not persuaded that Malcolm not providing such care and attention negates or eliminates any moral duty owing by Angus to his son.

[96]         Moreover, I conclude that the main source of the estrangement between Malcolm and Angus was Doris, and Angus was not prepared to give up his relationship with her.  We will never know whether, after Doris’s death, Malcolm’s and Angus’s relationship could have been repaired because Malcolm did not learn of Doris’s death until after Angus had passed away.

[97]         I conclude that, given how the estrangement between Malcolm and Angus arose, it did not justify Angus disinheriting his son and the circumstances did not negate Angus’s moral duty to Malcolm.  I find therefore that the 2003 Will did not make adequate provision for Malcolm.

[98]         What provision would be adequate, just and equitable?

[99]         I have concluded above that the CareVest Account does not form part of Angus’s estate.  Nevertheless, the size of the estate (approximately $390,000 as of trial) is sufficient to allow Angus’s moral obligation to Malcolm to be met, and to respect Angus’s clear testamentary wish to benefit his granddaughters.

[100]     Moreover, the fact that Karlynne and Shannon received the CareVest Account as a gift is something that I can take into account in considering what would be an appropriate variation of the 2003 Will:  see Inch, at para. 69 and McMain v. Leblanc, 2013 BCSC 891, at para. 97.




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