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It’s now doubly important that you have an experienced family lawyer like Lorne MacLean, QC on your side if you are involved in a disputed or unfair wills variation claim. Call him across BC toll free at 1-877-602-9900.
First Vancouver WESA Unfair Wills Lawyers BC Appeal Decision
The recent BC Court of Appeal decision of Eckford v. Vanderwood 2014 BCCA 261 dealt with a Vancouver WESA, unfair will and wills variation claim made by the widow of her deceased common law spouse who was left with no monetary provision in the Will although she did receive a half interest in the couple’s home by the right of survivorship as a joint tenant.
The wife was told by her deceased husband he was going to leave 40 percent to each of his two children and 20 percent to his mother at the time his Will was prepared. She had assets after receiving his share of the home of over $500,000 but complained she was in ill health and should have got more than just his half interest in the home that passed to her on her spouse’s death. The trial judge did not vary the Will saying the wife had been adequately provided for despite her ill health that had recently arisen.
The wife appealed to the Court of Appeal hoping for a better result. She was not successful and here’s why according the official summary from the Court’s own website:
Held: appeal dismissed. In deciding whether a testator made adequate provision a court should take into consideration the circumstances existing and reasonably foreseeable at the death of the testator. The appellant’s decline in health was not reasonably foreseeable. What is adequate provision will depend upon all the circumstances, including the circumstances of the other parties to whom the testator owed a moral obligation and their expectations. Given the financial circumstances of the Testator’s children and mother, the size of the estate, and the comparative value of the Testator’s half interest in the couple’s home, the Testator made adequate provision for the appellant.
Widow’s Assets Compared to Estate Value Is Critical
The Court reviewed the surviving common-law spouse’s assets compared to the modest size of the estate that passed to the children and mother and dismissed her appeal as follows:
 In November 2011, Ms. Eckford sold the Glenshee Property and moved to the Cabin where she continues to reside. The Glenshee property, although initially listed for $359,900, was ultimately sold for $328,000. After payment of commission and other expenses, she received $309,774.90 from the sale of which one-half ($154,887) arose from her right of survivorship.
 ..The net value of the estate at the time of the summary trial was estimated to be $283,396. Pursuant to the terms of the Will, Sonja and Tye would each receive $113,358 while Dyan would receive $56,679.
 At the time of the trial Ms. Eckford had assets valued at $536,000. The assets included her half interest in the cabin which she valued at $250,000. In addition her son Tyler owes her $25,000 which Ms. Eckford advanced to him towards the costs of his wedding.
 Before considering the individual grounds of appeal it is necessary to first briefly review the statutory foundation for the claim and the governing standard of review. The claim is brought pursuant to the provisions of s. 2 of the Act.
That provision, which is now found at s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13, reads:
Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may, in its discretion, in an action 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 testator’s estate for the spouse or children.
 Tataryn v. Tataryn Estate,  2 S.C.R. 807 [Tataryn], remains the seminal authority. As explained therein, in the context of a wills variation action the court must first determine whether the testator has made “adequate provision” for his or her spouse and children and if it concludes he or she has not, the court must then determine what is adequate, just and equitable. As noted by McLachlan J. in Tataryn, these are “two sides of the same coin”: Tataryn, at 814.
 In Tataryn, the Court explained that the main aim of the Act is adequate, just and equitable provision for the spouses and children of testators. The Act also protects testamentary autonomy; however, testamentary autonomy must yield to what is adequate, just and equitable: Tataryn, at 815-816.
 The phrase “adequate, just and equitable” is to be viewed in light of current societal norms. In determining what is adequate, just and equitable, the court must consider both legal and moral obligations.
The first consideration is a testator’s legal responsibilities during his or her lifetime. Maintenance and property obligations which the law would support during the testator’s lifetime should be reflected in the court’s interpretation of what is “adequate, just and equitable”.
The court should also consider the testator’s moral duties towards a spouse and children. While there is no clear legal standard by which to judge moral duties, the jurisprudence suggests that subject to such considerations as the size of the estate and the absence of circumstances that may negate such moral obligations, a testator should make provision for both a spouse and children. Tataryn recognizes that in any particular situation there may be a number of ways of dividing the assets which are adequate, just and equitable, and provided the testator has chosen an option within the range, the will should not be disturbed: Tataryn, at 823-824.
STANDARD OF REVIEW
 An unusual feature of wills variation jurisprudence is that an appellate court is in the same position as the trial judge and is not required to defer to the trial judge’s discretion except on matters based on oral testimony: Tataryn, at 813; Graham v. Chalmers, 2010 BCCA 13, at para. 28. In Doucette v. McInnes, 2009 BCCA 393 [Doucette], this Court noted that while the Court exercises an independent discretion to determine whether a testator has fulfilled his duties under the Act, the general rule of appellate review remains the same where the assessment of oral evidence is in question. That is, the Court of Appeal must pay deference to findings of fact of the trial judge unless those findings are unreasonable or based upon insufficient evidence.
 The question in a wills variation proceeding is whether or not the Testator has made adequate provision for the claimant. The Act does not require that the Testator necessarily provide for the claimant’s needs for the rest of her life. What is an adequate provision will depend upon all of the circumstances including those of both the claimant and of other parties to whom the testator owes a moral obligation to make provision.
 As previously noted, in an appeal of a decision in a wills variation action, this Court is in the same position as the trial judge and exercises an independent discretion in determining whether the Testator has fulfilled his duties under the Act. I find in this case that he has. I agree with the trial judge’s conclusion that given the length of their relationship, the fact that Ms. Eckford was not a dependent spouse, and the competing moral claims of his adult children, the Testator’s disposition of his assets was within the wide range of options that could be considered appropriate in these circumstances.
Our experienced family law and estate litigation team and our Vancouver WESA Unfair Wills Lawyers are ready to assist you in moving forward with your life after the death of a loved one. Call us toll free 1-877-602-9900 to meet at any of our 4 offices across BC located in Vancouver, Surrey, Kelowna and Fort St. John.
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