Wills Variation: Daughter Awarded 30% Net Estate

Termination of a Marriage-Like Relationship

Pascuzzi v Pascuzzi 2022 BCSC 907 is a wills variation action ( S 60 WESA) where a 32-year-old daughter of the deceased, who was disinherited pursuant to a will done when she was nine years of age, was awarded 30% of her father’s $1.8 million estate, with the surviving widow receiving the balance of the residue.

The case was a good review of the legal principles relating to an adult independent child versus a second, long time spouse.


[108] Section 60 of the Act reads as follows:

Maintenance from estate
60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

[109] The legal principles applicable to the matter at bar have been well settled, pursuant to the jurisprudence arising from s. 2 of the Wills Variation Act, R.S.B.C. 1996, c. 490, the former legislation that governed this area.

[110] The Wills Variation Act was repealed in March 2014 and replaced by the Act. The relevant provisions, however, are virtually the same, and the courts continue to be guided by that jurisprudence. As shown above, the legislation provides that if in the court’s opinion a will fails to make adequate provision for the proper maintenance and support of the testator’s—that is, the will maker’s—spouse or children, the court is empowered, in its discretion, to vary the will to make provisions that it considers adequate, just, and equitable in the circumstances.

[111] While the principles are well settled, applying the principles in light of modern values and expectations remains a challenge. As captured by McLachlin J. (as she then was) in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, which continues to be the leading authority for wills variation action, the application of the variation provisions involves “the search for contemporary justice”: Tataryn at 814–815.

[112] There are two fundamental interests protected by the relevant legislation: (1) adequate, just, and equitable provision for the testator’s spouse and children, and (2) the testator’s testamentary autonomy—that is, the testator’s decision to dispose of their interest as they see fit. While both interests are protected, testamentary autonomy must yield to what is adequate, just, and equitable: Tataryn at 815–816.

[113] In a wills variation action, the court must determine whether the will made adequate provision for the proper maintenance and support of the applicant spouse and/or children. If no such provision was made, the court must consider what provision would be adequate, just, and equitable in the circumstances: Tataryn at 814.

[114] What is adequate, just, and equitable in the circumstances is guided by contemporary legal and moral obligations. For this determination, the court may ask whether the testator, in their lifetime, legally owed any obligation to the applicant spouse and/or children. The court may alternatively ask whether the testator met their moral obligations to the applicant in the context of “society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards”: Tataryn at 820–821. In other words, the court must objectively assess the adequacy of the testator’s provision in the context of contemporary community standards.

[115] Where the application for variation is brought by a self-sufficient adult child of the testator, their moral claim may be more tenuous than that of a spouse or dependent child. However, the weight of the jurisprudence makes it clear that where the size of the estate permits, some provision for such children should be made, unless there are circumstances that would negate such an obligation: Tataryn at 822–823.

[116] As summarized by Ballance J. in Dunsdon v. Dunsdon, 2012 BCSC 1274, para. 134, the courts have accepted the following circumstances as relevant to the existence and strength of a testator’s moral duty to self-sufficient adult children:

a) relationship between the testator and claimant, including abandonment, neglect, and estrangement by one or the other;
b) size of the estate;
c) contributions by the claimant;
d) reasonably held expectations of the claimant;
e) standard of living of the testator and claimant;
f) gifts and benefits made by the testator outside the will;
g) testator’s reasons for disinheriting;
h) financial need and other personal circumstances, including disability, of the claimant;
i) misconduct or poor character of the claimant; and
j) competing claimants and other beneficiaries.

[117] There are “valid and rational” reasons for disinheritance that will negate the testator’s moral obligations. To constitute as “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: Clucas v. Royal Trust Corporation of Canada es qual, 1999 CanLII 5519 (B.C.S.C.), 25 E.T.R. (2d) 175 at para. 12.

[118] For instance, a testator’s moral obligations may be negated where there has been a lengthy estrangement. A testator who has been rejected by a member of his family is not required morally to ignore the rejection, nor to treat all family members equally, even when all are in need and the estate is small. While the testator must be judicious, they need not be impervious: Price v. Lypchuk Estate (1987) 11 B.C.L.R. (2d) 371 (C.A.) at 381.

[119] Lastly, while needs or maintenance is no longer the sole factor in governing variation claims, a consideration of needs is still relevant: Clucas at para. 12.

[120] The court, in deciding the award, may provide a single global percentage award.

[121] The date of the deceased’s death is the appropriate date at which to assess the value of the estate: Eckford v. Van Der Woude Estate, 2014 BCCA 261 at para. 50.

Recommended Posts