Our Surrey Estate Litigation Dispute Lawyers handle Surrey Wills Variation, BC WESA relief claims, and Surrey Estate Litigation disputes. Our highly rated Surrey estate litigation dispute lawyers note that unfair Wills can be successfully challenged by disappointed beneficiaries. The Will maker’s decision is entitled to deference if their decision is valid and rational but a Will can be varied under certain circumstances if the legal and moral obligations of the testator have not been met. If you feel you have been unfairly left out of a Will or denied a share of an estate you contributed to you should talk to us promptly.
An important BC Court of Appeal case dealt with whether the Will of a deceased mother who had 6 children of her first marriage and 3 children of her second marriage and a total estate of $775,000 should be varied under the Wills Variation Act and whether one son’s claim for unjust enrichment should succeed so he would receive a 5 acre farm. The Court of Appeal explained the legal and moral duty rules and the test for unjust enrichment claims and their reasons will help you understand this important area of Surrey estate litigation.
Surrey Estate Litigation Dispute Lawyers – Can A Second Family Be Preferred?
Our Surrey Estate Litigation Dispute Lawyers explain that the disagreement arose because the deceased Ms. Lupkoski’s Will dramatically favoured her second family because she knew her estate was mostly the result of her second husband’s efforts. The trial judge found this to be “valid and rational” reason and declined to vary the Will to treat the plaintiffs equally concerning the three children of the second marriage. One plaintiff received an extra $100,000 from the trial judge based on need.
Surrey Estate Litigation Lawyers – How Does The Wills Variation Act Work On Unfair Wills?
Lorne MacLean, QC, founder of our team of Surrey Estate Litigation Dispute Lawyers explains how the law respecting the decision of the deceased testator applies and the circumstances when a Will can be varied:
 Rosemary’s estate had a net value of some $774,576 at the time of trial.
 The trial judge varied the will pursuant to the Act to provide for a specific bequest of $100,000 to the plaintiff Wendy Scott-Polson, who, the trial judge found, struggles with various medical problems that make it impossible for her to support herself. The trial judge declined to make any other changes to the will, with the result that the children of Rosemary’s second marriage will each receive 25.8% of the residue of her estate (i.e., approximately $174,265 each) after payment of the bequest to Wendy, and each of the plaintiffs will receive 4.5% of the residue (i.e., approximately $30,355 each).
The judge noted the seminal case of Tataryn v. Tataryn Estate  2 S.C.R. 807, where McLachlin J., as she then was, described the two “interests” protected by the Wills Variation Act – to ensure that “adequate, just and equitable” provision is made for a testator’s spouse and children, and testamentary autonomy. In responding to the concern that there is no clear legal standard by which to judge moral duties, McLachlin J. stated:
… Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought. For example, 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. [At 822-23; cases omitted; emphasis added.]
 These comments were recently echoed and applied by this court in Hall v. Hall 2011 BCCA 354. There, Neilson J.A. for the Court stated:
The Supreme Court of Canada set out the principles that guide this analysis in Tataryn v. Tataryn … McLachlin J., writing for the Court, observed that s. 2 gives the court broad discretion in advancing two interests protected by the Act. The first is ensuring adequate, just and equitable provision for a testator’s spouse and children. The second is testamentary autonomy. If the second must yield to the first, the ultimate question is “what is adequate, just and equitable in the circumstances judged by contemporary standards”. In answering that question, the court will be guided by two sets of norms. The first are the testator’s legal obligations to his or her family. The second are the moral obligations to family members that arise from reasonable expectations of what a judicious person would do in the circumstances. Claims based on legal obligations will generally take precedence over those based solely on moral duties. The testator’s “legitimate concerns” should be recognized in assessing the extent of any moral obligations. Finally, there will be a wide range of appropriate options in judging whether the testator’s dispositions meet the requirements of the Act, and one’s freedom to dispose of one’s estate should be treated with deference as long as the options chosen fall within that range.
With specific reference to the claims of adult independent children, the Court [in Tataryn] stated a testator will not generally have a legal duty to an adult independent child unless the child contributed to the estate. As to moral obligations toward adult children, these are tenuous, but may justify entitlement if the size of the estate is adequate and the circumstances do not negate such an obligation. [At paras. 38-9; emphasis added.]
Second Family Son’s Claim For Entire Farm For Work On Farm Denied
The testatrix’s son (from the second marriage) claimed that his parents had promised to leave the five-acre property on which they lived, to him on their death; and his mother’s estate had been unjustly enriched by work he had performed on the property, and that the will had not treated him in an equitable and fair manner. The trial judge found on the evidence that no agreement between the son and his parents concerning the property had been proven; that the son also failed to prove his claim in unjust enrichment; and that the son had not made out a moral claim which was any greater than that of his siblings. Our Surrey Estate Litigation Dispute Lawyers explain how unjust enrichment and constructive trust claims are assessed:
 Ms. Newman on behalf of the plaintiffs also emphasized the benefits received by Stephen during his mother’s lifetime, noting in particular that just as Stephen’s presence might have made it possible for her to remain on the Towner Park property, Stephen would have had to make his own way and pay for his own room and board ‘but for’ his mother’s assistance. Like the relationship between the testatrix and her defendant daughter in McBride v. Voth 2010 BCSC 443, this relationship was not:
… a case where a child has sacrificed a goodly portion of her personal life or has foregone career or other opportunities or fortunes in order to care for a needy, invalid or demanding parent, as was the case for the plaintiffs in cases such as Clarkson v. McCrossen (1995), 3 B.C.L.R. (3d) 80 … Stanhope, Proulx, Antrobus, Blake and Wilcox v. Wilcox 2000 BCCA 491 … Margot [the daughter] made no sacrifice in her living arrangements or lifestyle to accommodate her mother; she simply never moved out. That was the way that she wanted it to be.
[The testatrix] made no promises to [the daughter] in terms of providing her with a financial benefit or the right to live in the McBride Home. [The daughter] had no expectation to receive compensation or financial benefit of any description from her mother in respect to the things she did for her and the care and companionship she provided to her over the years. [At paras. 166-67.]
In the present case, whatever Stephen’s motivation may have been in working on the property, he did not in my view have a moral claim to be treated more favourably than his sisters. Indeed I would infer that in fact Rosemary effectively acted more generously towards him − perhaps because of his needs − than she did towards Katrina and Karen.
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