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Vancouver Surrey Unfair Wills Lawyers help people obtain justice. Our skilled Vancouver Surrey Unfair Wills Lawyers know losing a loved one is bad enough but being left out of the estate just compounds stress and hurt.

Our experienced Vancouver Surrey Unfair Wills Lawyers handle medium to high net worth Vancouver, Surrey and BC estate litigation disputes where claims are made that a person has been treated unfairly by the terms of the deceased’s  Will or left out of any share in their parent or spouse’s estate. Contact our Vancouver Surrey Unfair Wills Lawyers early on in a Vancouver or Surrey estate litigation dispute as strict deadlines apply to challenge an unfair Will. Call us toll-free across BC to meet with us in Vancouver, Surrey, Kelowna, Richmond or Fort St John, BC at 1-877-602-9900

Vancouver Surrey Unfair Wills Lawyers

These cases are highly emotional, so our skilled Vancouver Surrey Unfair Wills Lawyers help parties understand what their rights and the Will maker’s obligations are.

A recent case involving a second marriage of a couple where the husband had two children from a previous marriage raised the issue of how spouses and adult children’s claims are dealt with when the deceased leaves everything to his new wife and nothing to his children from his first marriage.

The facts of the case indicate the deceased was a difficult husband and father to live with during his first marriage.  He was parsimonious and downright abusive to his first family according to their evidence. Inappropriate behaviours by the father to his daughter led to her leaving the home and being raised in part in foster care. The deceased father’s actions were considered as part of whether he had met his legal and moral duty to his adult children in his Will when he left them nothing.

Vancouver Surrey Unfair Wills Lawyers Explain Duty

In J.R. v. J.D.M., 2016 BCSC 2265 the Court reviewed the law on what the test is for a spouse an infant child, or an adult child to receive a share of the deceased Willmaker’s estate when inadequate provision is made for them in a Will. Gifts made before death must be considered so the whole picture of what the deceased gave to each potential beneficiary can be fairly assessed.

[3]             The deceased was survived by his second wife, the defendant J.D.M., whom he married on May 8, 2004. He and J.D.M. had no children together. The deceased also left two surviving children from his first marriage: the plaintiff, J.R. who was born in 1975 and the defendant, J.N.M., who was born in 1973.

[83]         The Court in Tataryn stated that the determination of whether a will makes adequate provision and, if not, what provision would be adequate, just and equitable, are “two sides of the same coin”: Tataryn, at 814.

[84]         The primary statutory objective of the WVA is the adequate, just, and equitable provision for a testator’s spouse and children. As identified in Tataryn, the other protected interest is testamentary autonomy. However, testamentary freedom must yield to the extent required to achieve adequate, just, and equitable provision for the applicant spouse and/or children. In that sense and to that degree only, testamentary autonomy will be curtailed by the application of the WVA: McBride v. Voth, 2010 BCSC 443 at para. 125. The Court of Appeal in Chan v. Lee (Estate), 2004 BCCA 644 at para. 43 affirmed that courts should not approach the WVA as a means “to right all the perceived wrongs of the past” or “to improve upon the degree of fairness of a will” if the testator has met his obligations under the WVA.

[85]         In addressing the adequacy of the testamentary provision, Madam Justice McLachlin clarified that the question of whether a testator has acted as a judicious parent or spouse is measured by an objective standard, assessed in light of current societal legal norms and moral norms. As outlined in Tataryn, legal norms are the obligations that the law would impose upon the testator during his or her life if the question of provision for a claimant’s spouse or child were to arise. A testator’s moral duties are grounded in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards”: Tataryn, at 820-821.

[86]         The concept of adequate provision is a flexible notion which turns on the particular circumstances of the case: Dunsdonv. Dunsdon, 2012 BCSC 1274, at para. 131. Tataryn expressly acknowledged that moral duties are more susceptible to being viewed differently by different people because there is no clear legal standard by which to judge such duties: Tataryn, at 822. However, the analysis in Tataryn underscores that the court must apply an approach that accords with a contemporary view of marital and parental obligations.

[87]         The Court in Tataryn recognized that the foregoing assessment necessarily involved the balancing of competing claims, and held that where the size of the estate permits, all moral and legal claims should be satisfied. Where prioritization is necessary, generally, claims that would have been recognized as legal obligations during a testator’s lifetime take precedence over moral claims. The court must also weigh the competing moral claims and assign each its priority according to their relative strength: Tataryn, at 823. The Court recognized that such an analysis would produce a range of options for the distribution of assets which might be considered appropriate in the circumstances. The court should only make an order to vary a will where the testator’s chosen distribution falls outside of this range.

[88]         The jurisprudence also establishes that in determining whether the will-maker has fulfilled his or her obligations, the court may consider gifts made outside the will. If a will-maker has made inter vivos gifts to individuals other than the claimant or has arranged his affairs to facilitate a passing of assets to such individuals outside the framework of the will, the moral duty to a claimant may be intensified: Wong v. Soo, 2015 BCSC 1741. Conversely and depending on the circumstances, a will-maker’s moral duty may be diminished or negated entirely where he or she has made gifts to a claimant either before death or in consequence of it: Dundson at para. 185; Doucette at para. 84.

In a future blog we will discuss the test for adult children and tell you what happened in this case so stay tuned.

Our compassionate and focused senior Vancouver Surrey Unfair Wills Lawyers can help you obtain your fair share of the estate if you have been treated unfairly or cut off entirely from your proper share of an estate. Call us today at 1-877-602-9900 to take steps to get justice. Remember, deadlines to act apply so don’t let this happen to you.