Vancouver Spouse Unfair Wills Variation lawyers help spouses and children who have suffered the loss of a loved one to ensure they don’t lose their fair share of the estate too. Our top-rated* Vancouver Disinheritance Unfair Wills Variation lawyers get involved to protect family members when a Will does not make adequate, just and equitable provision for a spouse or child. In today’s blog, Fraser MacLean explains how spousal wills variation claims are decided by BC courts and how the legal and moral obligation to adequately provide for the surviving spouse is assessed under section 60 of WESA.
In high net worth Vancouver Spouse Unfair Wills Variation cases, business valuations and tax calculations by experts are often required. Hiring an experienced and skilled family law and estate dispute litigation lawyer like Lorne MacLean, QC is wise because in cases of unfair wills variation claims by a spouse the test for fairness will involve comparing the share given to a spouse in an estate against what they would have received on separation under our Family Law Act and Divorce Act.
Making sure you hire a lawyer familiar with the new property regime under the Family Law Act is key because cases decided under the old Family Relations Act are of limited utility.
New Family Law Act and WESA Differences
In Kish v. Sobchak, 2016 BCCA 65 Justice Newbury of the BCCA held the legal obligation to support a spouse was:
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.
This statement caused some concern that the notional divorce/separation spousal entitlement “measuring stick” was no longer valid but the Court of Appeal has confirmed the approach under s. 60 of the WESA remains as set out in Tataryn: Gibbons v. Livingston, 2018 BCCA 443. The key point to note is that the new Family Law Act has a new regime of excluded property for property brought into the marriage or for gifts and inheritances received solely by one spouse. The regime for departing from 50/50 division of family property is also different from the former Family Relations Act.
Even if a legal obligation is met in the Will the court can go on to see if the Willmaker’s moral obligation was met. We will deal more with the legal and moral obligation in a separate blog.
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MacLean Estate Litigation and Family Law lawyers handle complex financial estate and family law disputes. There is significant overlap in these two areas of law that means hiring a lawyer familiar with both is critical. Our team of Vancouver Disinheritance Unfair Wills Variation lawyers acts out of 5 offices across BC in Vancouver, Surrey, Richmond, Kelowna and Fort St John BC.
When Spouses Are Involved Courts Compare Bequest To What Spouse Would Receive On Separation
In the BC Supreme Court decision of Ciarniello v James a Will maker’s wife argued she had received an inadequate bequest and she argued she should receive 505 of the estate:
 The plaintiff’s position is that under Tataryn v. Tataryn Estate,  2 S.C.R. 807, a variation of her husband’s will is justified based on her legal and moral claims arising from their 39-year relationship, supported by her entitlement to a property division under provincial family law legislation and her right to spousal support, all considered in light of her claim for unjust enrichment.
 The plaintiff says that the deceased failed to make adequate, just and equitable provision for her in the will and seeks a declaration to that effect. In the initial summary trial hearing she sought a variation of his will to satisfy what she argues is his legal and primary moral obligation to her. The plaintiff’s position is that the maintenance and property allocations that would be made to the plaintiff under provincial family law, support legislation and the doctrine of unjust enrichment inform whether the testator discharged his legal and moral duty to her. The plaintiff says that the legal duty of the testator is to be determined as if the parties had separated immediately before his death. In the circumstances the plaintiff says she was entitled to roughly 50% of the family property.
Tax Consequences Can Pack A Punch In Vancouver Estate Litigation Disputes
In large estates, business valuations and tax considerations are in play and the impact of various ways to vary a Will can change the tax consequences that can reduce the value of the estate before it is divided. There are often disputes over whether the tax should be taken into account fully, not at all or partially. In the Ciarniello case, the estate had a value of over $11,000,000 before tax and roughly $4,000,000 less if taxes were taken into account.
The wife argued the estate should pay all the tax because the deceased failed to properly provide for her in his Will:
 In determining the extent of the legal duty owed by the testator, the plaintiff says that the tax liability the estate incurred of approximately $3.6 million is irrelevant as tax planning could have been undertaken by the deceased to avoid tax. In the plaintiff’s submission the tax liability arose essentially because the deceased left the plaintiff out of his will.
Test Used Vancouver Spouse Unfair Wills Variation
The test used under the Wills Variation Act and similarly under WESA section 60 to decide firstly if the testator met their legal obligation and secondly if they met their moral obligation is:
 Section 2 of the Wills Variation Act [now WESA] involves a two-stage process described in Landy v. Landy Estate, (1991) 60 B.C.L.R (2d) 282. First, was adequate provision made for the proper maintenance and support of the applicant? If the court finds adequate provision was made, the inquiry goes no further. If, however, adequate provision has not been made, the court must consider what provision would be adequate, just and equitable in the circumstances: Eckford v. Vanderwood, 2014 BCCA 261 at para. 49.
 Madam Justice Ballance in Heathfeld v. St. Jacques, 2015 BCSC 505, said at para. 49:
The conceptual essence of the statute is to permit judicial interference with testamentary freedom where adequate provision has not been made in respect of a narrow protected class. Testamentary freedom is, therefore, subordinate to the main objective of the WVA [now WESA] and must yield, to the extent required, to achieve adequate, just and equitable provision for the applicant spouse and/or children. That said, the judicial approach is not to start with a “blank slate and write a will designed to right all the perceived wrongs of the past, nor interfere only to improve upon the degree of fairness of a will if the testator has met his obligations under the [WVA]”: Chan v. Lee (Estate), 2004 BCCA 644 at para. 43.
 I think the plaintiff is correct that the approach in British Columbia following Tataryn has been to determine the legal obligations to a spouse by considering the spouse’s entitlement in a notional separation immediately prior to the testator’s death. See for example: Wong v. Soo, 2015 BCSC 1741 at paras. 70, 73-75, 114‑115; Saugestad v. Saugestad, 2006 BCSC 1839 (varied but not on this point, 2008 BCCA 38); Glanville v. Glanville (1998), 58 B.C.L.R. (3d) 240, at paras. 14 and 50; Erlichman v. Erlichman Estate, 2002 BCCA 160 at para. 49; Bridger v. Bridger Estate, 2006 BCCA 230 at para. 19.
Legal and Moral Duty to Spouse Higher
The court ultimately found the husband failed to adequately provide for his wife in his Will stating:
 Accordingly, I have concluded that the testator did not discharge his legal and moral duty to his spouse and in essence preferred his moral duty to his adult children. While deciding whether the testator’s duty was met I recognize he is entitled to autonomy provided his allocation of assets falls within a range of options, any of which might be acceptable. However, I find that the option the testator chose was short on his legal and moral duty to the plaintiff.
 Although the evidence suggests that the testator undertook clear and deliberate estate and tax planning, and was apparently an astute businessman, I think in providing for his spouse his will was outside the range of reasonable options. It was not an adequate, just and equitable provision for her.
 Although Dr. Ciarniello owed no legal duty to his five adult children, he had a moral duty to them as he did to his surviving spouse, but I place the moral duty to his spouse higher. I have to balance the legal and moral claims of the plaintiff and the children.
Finally, the Court noted that although better tax planning could have been made if the wife had been properly provided for the fact taxes were payable it would be unrealistic and unjust in making an award to ignore the actual tax consequences.
In the end result, the wife received an additional 25% in the residue of the estate and a minority interest in one company.
If you are involved in a high net worth Vancouver Spouse Unfair Wills Variation case pick up the phone and call Lorne N MacLean, QC.
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