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Wills Variation: Criteria For Adult Children

Wills Variation: Criteria For Adult Children

A body of case law exists that set out the criteria for the courts to consider when adjudicating a wills variation claim brought by an adult independent child against a deceased parent’s estate.

British Columbia is the only province in Canada that allows for independent adult children not dependent on their parents to make a claim for wills variation of a parent’s last will and testament if the said child was not adequately provided for. ( see S. 60 WESA for current legislation)

The leading case Tataryn v Tataryn (1994) 2 SCR 807 clarified that most people would agree that an adult independent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow, after he for after firstly satisfying any legal obligations owed to a spouse or dependent children.

The court recognized that while the moral claim of an independent adult child may be more tenuous, a large body of case law existed that suggested that if the size of the estate, permitted and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made in an estate.

The court was clear that the testator’s will should only be interfered with to the extent necessary to meet the testator’s legal and moral obligations and also that so long as the testator has chosen an option which is within the range of appropriate options for dividing his or her estate, the will should not be disturbed.

The two leading cases on the summary of overriding principles the courts will consider and a wills variation claim are Clucas estate (1999) 25 ETR 175 at para. 12 and later McBride v Voth 2010 BCSC 443 at paras 129-142.

Subsequently in Dundsdon v Dunsdon 2012 BCSC 1274 at para. 234  the court identified the following 10 considerations as those which have been accepted, in the post Tataryn era, as informing the existence and strength of a testator’s moral duty to independent children:

  1. The relationship between the testator and the claimant, including abandonment, neglect and estrangement by one or the other;
  2. The size of the estate;
  3. The contributions if any, by the claimant;
  4. Any reasonably held expectations to inherit of the claimant;
  5. The standard of living of the testator and the claimant;
  6. Gifts and bequests made by the testator outside of the will or previously by inter vivos gifts;
  7. The testator’s reasons for any disinheritance;
  8. The financial need another personal circumstances, including disability of the claimant;
  9. Any misconduct or poor character of the claimant;
  10. Competing claimants and other beneficiaries.

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