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Lorne MacLean, QC, MacLean Family Law

Vancouver BC Unfair Wills Variation cases are on the rise as a result of the current pent up intergenerational wealth transfers caused by surging real estate and stock values. In today’s blog founder Lorne MacLean, QC reviews a new Unfair Wills variation case. MacLean Law has offices across BC and in Calgary and Toronto. Contact our Vancouver BC Unfair Wills Variation Lawyers. Calls us toll free at 1 877 602 9900 early on as strict deadlines apply.

Vancouver BC Unfair Wills Variation 1 877 602 9900

In Jung  v.  Poole  Estate,  2021  BCSC  623  two estranged twins of the deceased , who were the subject of a bitter child custody dispute years back,  brought a Vancouver BC Unfair Wills Variation action.  The embittered  father  sought  to  have  none  of  his  estate  go  to  the  twins.  Justice Weatherill varied  the  will  to  give  seventy  percent  of  the  estate  to  the  twins  on  the  grounds  that  the  father had  breached  his  moral  obligation  to  his twin  children.  The  Court  determined that the  father  had  abandoned the  twins  twice  and  had  a  strong  moral  obligation,  which  he  failed  to  meet  during  his  lifetime.  The  Court  also  decided  that  the  father  blamed  the  children for  the  decision  in  the  custody  battle (which the court held given they were only age 4 during the custody trial the result was beyond  their  control)  and  for  them  not  having  a  relationship  with  him.  Importantly the judge, the father’s moral obligations were not discharged and  the will was varied. In this blog we take a look at the principles courts apply in Vancouver BC Unfair Wills Variation disputes.

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Vancouver BC Unfair Wills Variation
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The Court noted the Deceased was never denied parenting of the Twins either before or after the Noonan Child Custody Order; his pattern of neglecting the Twins after the Custody Trial is consistent with his pattern of neglect before Celine’s death:

[50]         I conclude that the Deceased’s abrupt reversal in direction and his decision to ignore the Twins was driven by bitterness and “sour grapes” in losing the Custody Trial. Instead of blaming himself for four years of abdicating his responsibilities as the Twins’ father and instead of following through with his statements to Justice Noonan that he wanted to be a part of the Twins’ lives as their father, he blamed the Twins for the estrangement. The Deceased’s views of the matter were neither valid nor rational.

[52]         His rationale for disinheriting the Twins is, I conclude, invalid, irrational, and not based on what a reasonable testator judged by contemporary community standards would or should have done.

[26]         The principles that can be extracted from Tataryn that are applicable to the issue of whether or not the Deceased had a moral obligation to the Twins in this case are as follows:

a)    The language of what has now become s. 60 of WESA 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” This does not impose 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” (See paras. 12–13);

b)    “Courts are not necessarily bound by the views and awards made in earlier times.” The wills variation provisions “must be read in light of modern values and expectations” (See para. 15);

c)     Financial need is not a prerequisite to establishing an entitlement to an adequate, just and equitable share of the family wealth on the death of a person who held it (See para. 16);

d)    In balancing adequate, just and equitable provisions for claimants on the one hand and testamentary autonomy on the other, the former interest is paramount and testamentary autonomy must yield to what is adequate, just and equitable judged by contemporary standards (See para. 17);

e)    The test for determining what is “adequate, just and equitable” is grounded in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (See para. 28);

f)      “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” (See para. 31);

g)    Conflicting claims are to be balanced against each other where the value of the estate permits. Based on the strength of each claim, the court should assign to each its proper priority (See para. 32); and

h)    Only where the testator has failed to meet his or her obligation as defined by moral norms, should the court make an order which achieves the justice the testator has failed to achieve (See para. 33).

Varying An Unfair Will Lawyers 1 877 602 9900

The judge went through a number of factors he had to consider in dealing with the Vancouver BC Unfair Wills Variation litigation

[27]         In McBride v. Voth, 2010 BCSC 443 at paras. 129–142 [McBride], Madam Justice Ballance set out six factors for consideration in a s. 60 WESA action:

a)    contribution and expectation;

b)    misconduct/poor character;

c)     estrangement/neglect;

d)    gifts and benefits made by the testator during his/her lifetime;

e)    unequal treatment of children; and

f)      the testator’s reasons for disinheritance.

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Having decided the deceased father had not provided properly in this Vancouver BC Unfair Wills Variation litigation case the court reviewed other cases to decide what a fair share for the twins was:

[57]         The Twins invite me to make a single global percentage award to them. They say they will divide it equitably between them as their respective circumstances require. They seek an order varying the Second Will to give them 90% of the Deceased’s estate. In support, they rely on:

a)    Lamperstorfer, where the testator’s 60 and 62-year-old sons had their share of the estate from 25 percent each—the other 50 percent going to a host of other named beneficiaries—to 40 percent each.

b)    Graham v. Chalmers, 2010 BCCA 13, where the testatrix split her estate into four shares, one each to her two children and one each to one child’s two children. The Court of Appeal ordered that each of the two children should each receive 40 percent with the grandchildren each receiving 10 percent.

c)     Southam v. Royal Trust Corp of Canada, 2000 BCSC 559, where the testatrix disinherited to a large extent her adopted daughter (she had no other children) in favor of three charitable institutions. The will was varied to provide that the daughter receive 75 percent of the residue and the charities receive 25 percent.

d)    Moore, where the testatrix left her entire estate to her neighbours to the exclusion of her only son who had been the sole beneficiary under an earlier will. The Court concluded that the testatrix failed to meet her moral obligations to her son and varied her will to provide him with 50 percent of the estate.

e)    McEwan v. McEwan, 2014 BCSC 916, where the testator left his entire estate to his two granddaughters and disinherited his only son who was 74 years’ old and estranged. The Court varied the will to provide the son with 50 percent of the residual estate and the two granddaughters each receiving 25 percent.

f)      Wilson, where a testatrix left one percent of her estate to her sole surviving adult son with the residue going to friends. The Court noted that her son, albeit estranged, was the only person to whom the testatrix owed any moral obligation. The Court varied the will to provide the son with 50 percent of the residue of the estate with the other 50 percent going to the friends.

g)    Enns, involving a testatrix who left a nominal amount of her $1 million estate to her estranged daughters and the lions share to two charities. Again, the court varied the will to provide for the plaintiff to receive 40 percent of the estate and the charities receiving 60 percent.

The Judge ultimately gave the twins 35% each of an estate valued at about $900,000.

If you have a Vancouver BC Unfair Wills Variation question contact us right away as strict deadlines apply.