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Wills Variation: Moral Duty of Long Time Spouses

Wills Variation: Moral Duty of Long Time Spouses

In the leading case Tataryn v Tataryn ( 1994) 2 SCR 806 the court stated that most people would agree that although the law may not require a supporting spouse to make provision for a long time dependent spouse after his or her death, a strong moral duty to do so exists if the size of the estate permits.

Similarly, 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.

The moral claim of an independent adult child may be more tenuous, but 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.

Some cases, such as Bell v Roy 75 BCLR (2d) 213 BCCA is representative of a line of cases where the moral duty was seen to be negated.

In Bridger v Bridger estate 2006 BCCA 230 the appeal court discussed the claims of adult children vis-à-vis the claim of a long-term spouse.

The court  recognized that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults.

There may be a number of options for dividing assets by a testator which are adequate, just and equitable, but the court held that they do not include a disposition that entirely prefers the moral claims of adult independent children to those of a loyal spouse who provided care for the testator over years of debilitating decline.

The legal obligation under wills variation legislation can be quantified in terms of what would the deceased have received in terms of the legal division of assets if he or she had divorce the day before death.

The question then becomes the measure of the outstanding moral obligation.

In Picketts v Hall Estate 2009 BCCA 329 a long-term common-law spouse received a substantial award from the large estate of her spouse, and the court observed that “it is not a viable option for the court to approve a disposition that substantially prefers the moral claims of adult independent children to those of a long-term, caring and dedicated spouse”.

What complicates the division of assets between adult children and spouses in wills variation claims is where the relationship between the parties occurs late in life after each had become self-supporting, had children, accumulated their own assets and took particular care to keep their finances separate and benefit his or her won children rather than each other.

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