The MacLean Estate Litigation team of Vancouver unfair Will lawyers assists clients across British Columbia in making claims against an estate when inadequate provision for a spouse or children of a deceased Will maker is alleged. Contact our Vancouver unfair Will lawyers toll-free at 1-877-602-9900 to meet with us at any of our 4 locations.
But how does the court decide what adequate provision is? And how is the right of the Will maker to decide what they want to do with their estate constrained by a duty to make adequate provision for their loved ones?
- Should the test be measured against what a spouse would receive if the parties divorced?
- Should the assets of the survivor and their income be added into the mix to determine what is fair?
- Should the survivor’s Will be looked at to see what they were planning for their estate?
These are all great questions that a recent BC Court of Appeal decision factored into the mix when deciding to reduce a trial judge’s award on an unfair Wills variation application.
Our Vancouver unfair Will lawyers note the recent BC Court of Appeal case looked at these factors and in deciding the proper test for adequate provision involving:
- The Will of a man who had to know a woman for 20 years, lived with her for 5;
- where both had kept their finances separate and each created their Wills leaving their estate to their children of prior relationships and nothing to each other.
- The surviving wife was in a long term care facility and the monies she would receive on the Wills variation Act claim would not likely be of any tangible benefit to her.
Our Vancouver unfair Will lawyers found the analysis of what the fair amount for adequate provision for the common-law wife was important for our clients to understand.
Our experienced Vancouver unfair Wills lawyers handle Wills variation and WESA unfair Wills variation claims across BC and we have offices in Vancouver, Kelowna, Surrey and Fort St. John.
In the rare 5 judge BC Court of Appeal panel in Kish v Sobchak Estate (http://www.courts.gov.bc.ca/) the court reviewed the standard a judge should apply to decide if a Will adequately provided for a beneficiary who claims they received less than their fair share from the deceased Will maker’s Will. if you feel the test below favours you receiving more than the Will gave you, call our Vancouver unfair Will lawyers right away as strict time limits apply.
“Contemporary Standards”
[46] In Tataryn, McLachlin J. described the discretion given to the court by the WVA as follows:
The language of the Wills Variation Act is very broad. The court must determine whether the testator has made “adequate provision” for his spouse and children. If it concludes he or she has not, the court “may, in its discretion, … order … the provision that it thinks adequate, just and equitable in the circumstances”.
I do not interpret the section as imposing two different tests. The court must ask itself whether the Will makes adequate provision and if not, order what is adequate, just and equitable. These are two sides of the same coin.
Whatever the answers to the specific questions, this much seems clear. The language of the Act 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. This, combined with the rule that a statute is always speaking (Interpretation Act, R.S.B.C. 1979, c. 206, s. 7), means that the Act must be read in light of modern values and expectations. What was thought to be adequate, just and equitable in the 1920s may be quite different from what is considered adequate, just and equitable in the 1990s. This narrows the inquiry. Courts are not necessarily bound by the views and awards made in earlier times.The search is for contemporary justice. [At 814-5; emphasis added.]
[47] As seen earlier, the Court went on to suggest that what is “adequate” is to be viewed in light of “current societal norms”, both legal and moral. In connection with the former, we are to consider the legal responsibilities the deceased might have had in his lifetime “were the question of provision for the claimant to arise.” (Tataryn, at 820.) I note that in some provinces, the Wills variation legislation requires the court to consider any rights the claimant has or had under specified family legislation: see, e.g., the Family Relief Act, R.S.N.L. 1990, c. F-3, s. 5(1) and the Wills and Succession Act, S.A. 2010, c. W-12.2, s. 93. Section 2 of the WVA of this province, however, does not restrict in any way the broad discretion of the court:
… 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, … order that the provision it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the spouse or children. [Emphasis added.]
[48] The Court in Tataryn (which was on appeal from this province) suggested that where provision for a spouse is in issue, guidance concerning the testator’s legal obligations while he or she was alive may be found in the Divorce Act, family property legislation, or the law of constructive trusts. The Court, however, did not carry out a detailed examination, or make specific findings, concerning what property or how much support Mrs. Tataryn would have been entitled to in the event of a separation. The Court awarded her certain real estate and the residue of her husband’s estate after allowing for gifts to the testator’s sons.
[49] I infer that the analysis of legal obligation need not be a detailed or exact one, given the difficulty of drawing a direct analogy between the consequences of a marriage breakdown – which leaves both spouses with needs and obligations – and the death of a spouse. McLachlin J. stated that “there will be a wide range of options, any of which might be considered appropriate in the circumstances.” (Tataryn at 824.) An action under the WVA should not normally become a proxy for divorce proceedings, complete with the elaborate features and special rules applicable to a family law trial.
[56] Even if we were to assume all Ms. Kish’s needs are being met by “the state”, however, the case law suggests that that fact would not be fatal to a claim for spousal support on a separation: seeMoge v. Moge [1992] 3 S.C.R. 813; Harvey v. Harvey (1995) 9 B.C.L.R. (3d) 83 (C.A.); Papaspirou v. Soussoudis (1999) 2 R.F.L. (5th) 437 (Ont. S.C.) at para. 5; and Norrish v. Norrish 2015 ABQB 370 at para. 58. Thus it is likely Mr. Sobchak would have had some legal obligation of support during his lifetime.
[57] Turning to the question of the moral obligation owed by the “judicious person” in Mr. Sobchak’s position, more factors come into play. One is the competing claim of Ms. Doyle and her expectations. She of course was not a dependant child to whom a legal obligation was owed by her father when he died (see Tataryn at 822); but he had clearly led her to believe she would inherit substantially. She is the mother of his grandchildren, to whom he was close. The trial judge stated at para. 37 that Mr. Sobchak “actually had, strong moral obligations to his daughter in addition to the obligations both legal and moral, that he had to the plaintiff.” On the other hand, Ms. Doyle did receive his RRIF of $250,000 – an amount almost equal to the value of the estate itself.
[58] In Tataryn, the Court stressed that the moral claims of a spouse will usually take precedence over those of adult children. In the words of McLachlin J.:
… most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits. Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow. While the moral claim of independent adult children may be more tenuous, 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: Brauer v. Hilton (1979), 15 B.C.L.R. 116 (C.A.); Cowan v. Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.), aff’d (1990), 37 E.T.R. 308 (B.C.C.A.); Nulty v. Nulty Estate (1989), 41 B.C.L.R. (2d) 343 (C.A.). See also Price v. Lypchuk Estate, supra, and Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (C.A.) for cases where the moral duty was seen to be negated. [At 822-3; emphasis added.]
[59] In Bridger v. Bridger Estate 2006 BCCA 230, Mr. Justice Mackenzie for the majority discussed the claims of adult children vis-à-vis the claim of a long-term spouse:Tataryn recognizes 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. While, as McLachlin J. observes in Tataryn, there may be a number of options for dividing assets by a testator which are adequate, just and equitable, I do not think they 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. I am satisfied that the trial judge was right to recognize unfulfilled legal and moral obligations of the testator to Mrs. Bridger, as those terms are understood in a Wills variation context. The legal obligation can be quantified as above. The question then becomes the measure of the outstanding moral obligation. [At para. 20; emphasis added.]
(See also Picketts v. Hall (Estate) 2009 BCCA 329, where 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.”)Conclusion
[62] Like the trial judge, this court can do no better than exercise its discretion based on all of the relevant factors in the particular case before it. In my opinion, the factors that weigh most heavily are the relative sizes of the two estates on the one hand, and on the other, the legal support obligation to which Mr. Sobchak would have been subject if the parties had separated during his lifetime. In all the circumstances, I cannot say the trial judge erred in finding that Mr. Sobchak failed to make “adequate provision” for Ms. Kish, even though she has the equity in her home to meet her basic needs.
[63] At the same time, I conclude that through the lens of “modern values and expectations”, the parties’ wishes remain an important consideration. The parties’ particular circumstances and their relationship weigh strongly, in my opinion, in favour of respecting testator autonomy. I would, with respect, give more weight to that principle than did the trial judge and would therefore reduce the award to Ms. Kish to $30,000.
If you feel you have been left out of a Will unfairly or received less than your fair share call our Vancouver unfair Will lawyers today. We are here to help you call us toll-free at 1-877-602-9900.
