BC Estate Law re Wills Variance: Testamentary Autonomy

Wills Variance: Testamentary Autonomy

BC Law has wills variance laws that Trevor Todd has successfully litigated over for 50 years.

The leading case in British Columbia on wills variation law and testamentary autonomy is the Supreme Court of Canada decision Tataryn v Tataryn (1994) 2 SCR 807 , which set out an objective analysis of whether the testator was acting in accordance with societies reasonable expectations of what a judicious parent would do in the circumstances, by reference to contemporary community standards.

There are two main considerations that the courts must observe when deciding wills variation cases, namely:

1. the main purpose of the wills variation act (now S.60 WESA) is the adequate, just and equitable provision for the spouses and children of testators;

2. The other interests protected by the act his testamentary autonomy. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his or her legitimate concerns and provide for an ordered administration and distribution of his or her estate in the best interests of the persons and institutions closest to him or her. It is the exercise by the testator of his or her freedom to dispose of his or her property and is to be interfered with not lightly but only in so far as the statute requires.

Thus the question of what is just adequate and equitable under the wills variation act and subsequent case law, is complicated by the need of the court to support testamentary autonomy as much as is reasonably possible in the circumstances of the particular case.

The language of the legislation confers a broad discretion on the court.

The generosity of the language suggests that the legislature was attempting to craft a formula which would permit the courts to make orders which are just in the specific circumstances and in light of contemporary standards.

This means that the act must be read in light of modern values and expectations. The court pointed out that what was thought to be adequate, just and equitable in the 1920s may be very different from what is considered adequate, just and equitable today.

The searches for contemporary justice.

With respect to the protection of testamentary autonomy, the Taryn decision stated at paragraphs 815 – 16:

“the other interests protected by the act his testamentary autonomy. They acted not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to override the latter with what was “adequate, just and equitable in the circumstances.” Testamentary autonomy was to yield to what is adequate and just in the circumstances, and the ultimate question is what is adequate, just and equitable in the circumstances judged by contemporary standards. Once that is established, it cannot be cut down on the ground that the testator did not want to provide what is adequate, just and equitable.”

In Grewal v Litt 2019 BCSC 1154 the court stated that the judicial approach to variation of a will under section 60 of WESA is not to start with a blank slate and then write a will design to write all of the perceived wrongs of the past. Instead judicial interference with testamentary autonomy should be minimized. Chan v Lee 2004 BCCA 644 at para.43

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