Kish v Sobchak 2016 BCCA 65 heard by a panel of five judges, took an opportunity to revisit the origins of wills variation legislation in British Columbia, and to provide guidance on past themes and emerging trends.
The plaintiff Kish was 72 years of age and had suffered from dementia for approximately 8 years. She was incapable of managing her affairs, resided in a mostly province paid facility, and had a wills variation action brought by her son as her litigation Guardian.
Kish and the deceased had a dating romantic relationship for about 22 years, as each had earlier marriages and children, and each had amassed their own capital prior to the commencement of their relationship.
During their time together they made a concerted effort to keep their finances separate, file tax returns describing themselves as single, and each maintain their own house.
Each party created estate plans in which they each gifted their assets to their own children or grandchildren. Their estates were approximately the same size as one another. At least one of the parties had repeatedly expressed his desire never to remarry or be in a marriage like relationship.
At trial, the judge found that they were in a marriage like relationship and awarded the surviving spouse Kish the sum of $100,000.
The Court of Appeal reduce that award to $30,000 quoting inter alia, the decision of Frolek v Frolek (1986) No. 1869 BCSC that it is not the purpose of the wills variation act to enable an applicant to build up an estate of his or her own, but rather to ensure that he or she is approximately maintained and supported during his or her lifetime.
The trial judge acknowledged the deceased explanation contained in a memorandum to his codicil, that he considered he had met his duty to Ms. Kish, in part “ because he understood she had her own assets and income to the extent that she did not need any part of his estate”.
The judge did however find that his belief was erroneous, and that Ms. Kish was in need.
In reducing her award to $30,000, the court reviewed the principles of the leading decision Tataryn v Tataryn (1994) 2 SCR 806 will and emphasize the following themes:
- Search for contemporary justice- the Kish analysis excerpts three paragraphs from Tataryn on this theme;
- There is no one right answer- the wills variation act ( now. Section 60 WESA) 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. There will be a wide range of options, any of which might be considered appropriate in the circumstances. When reviewing the facts of any case in light of the current societal expectations, there are many options, it could be considered adequate in the circumstances. It is only where the provision made falls as outside of that range that the court will interfere;
- The importance of testamentary autonomy- through the lens of modern values and expectations, the parties wishes remain an important consideration . In the Kish case both parties wish to keep their finances separate and to provide for their own children. This is a common desire amongst couples who met later in life and have have children from earlier relationships. The Court of Appeal held the testamentary atoning in this case was in fact in line with contemporary community standards. Many today would find it unfair or inappropriate to disregard the wishes of both parties that their modest estates, built up through their own individual aspirates, should be their own, and that the respective children should benefit exclusively therefrom.