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Avoid These Excluded Property Mistakes

Our varying unfair Vancouver BC Wills WESA lawyers know a testator is given considerable freedom to decide how their estate is divided as long as they meet their legal and moral obligation to their beneficiaries. In Vancouver, BC, adult children can apply to vary an unfair Will under our WESA legislation. Many provinces outside of BC do not allow this. There are strict deadlines for Varying Unfair Vancouver BC Wills WESA claims so contact our Vancouver estate litigation lawyers immediately if you have been left out of your fair share of an estate. If you think you have a BC or Vancouver Unfair will claim, contact our Vancouver unfair Wills lawyers.

We have offices across BC and in Calgary Alberta. Contact us now to avoid financial loss.

Varying Unfair Vancouver BC Wills WESA Tel: 604 602 9000

In the recent case of Tom v Tang BCCA 221 a deceased mother left 85% of her estate to 2 of her 5 children who had provided care to her during her last 3 years of life but only 5% each to the remaining 3 children. The 3 children who received a mere 15% of the estate applied to set aside the will for unfairness under WESA and were successful at trial in increasing their share to. The two children who were granted 85% in the Will appealed the reduction of their share from 42.5% each to 27.8 per cent each and were successful in part in increasing their share to 30% each while reducing slightly the remaining 3 children’s share to 13.33% each. Our founder Lorne Maclean, KC explains the end result decided by the Court of Appeal is summarized on the website as follows:

The cases relied on by the appellants, Bell v. Roy Estate, Kelly v. Baker and Hall v. Hall, do not stand for the principle that a testator’s unequal treatment of adult children must be deferred to if the reasons given for the unequal distribution are valid and rational. Those cases, read in context, recognize that a testator’s moral duty to adult children must be assessed using the objective standard of the reasonable testator, and provide that the moral duty may be negated where there is just cause. Here, the testator did not meet the objective standard of a judicious parent, given that each child had a significant moral claim arising from their contributions to the family economy. To address this, while still respecting the testator’s desire to reward the appellants, the will is varied to grant the appellants each 30% of the estate and the respondents each 13.3%.

The courts found contributions of the minority share children were significant:

[67]         I agree with the judge’s assessment that Mrs. Tom did not meet the objective standard of a judicious parent in giving almost 85% of her estate to Rose and Samsun, and roughly 5% to each of Faye, Linda and Jack. The moral claim arising from the children’s contributions to the family economy—which enabled Mr. and Mrs. Tom to purchase a store, a home, and ultimately the West 64th Avenue property and to retire when Mrs. Tom was 53—was significant. Those contributions were markedly different from the kind of chores and contributions to a family enterprise provided by children and adolescents, which is a normal part of family life and in general, not compensable: see also Antrobus v. Antrobus,2009 BCSC 1341 at para. 185, aff’d 2010 BCCA 356; McDonald v. McDonald, 2017 BCCA 255 at paras. 74–78. The parties were in fact adults during the bulk of the family’s income generating years. Linda turned 19 in 1972, the year after the store was purchased. Faye turned 19 the following year and Jack, the youngest, turned 19 in 1977. Rose and Samsun were also adults contributing to the family economic unit at this time. Further, all of the children had been equally close to and supportive of their mother for her entire life, other than during the last three years.

When can a testator (the person who made their Will) disinherit a child? The BC Appeal Court held:

[36]         There are a number of points to be drawn from a careful reading of this part of the reasons. First, in the context of Goldie J.A.’s earlier recognition that the moral duty of the testator must be assessed from the standpoint of a reasonable testator (para. 29) and of the principles firmly established in Walker (para. 33), paras. 36–38 cannot be read as a departure from an objective analysis. They are, rather, a recognition that the analytical framework also requires the court to take into account the principle of testamentary autonomy (subsequently confirmed in Tataryn at 824) and the long line of cases recognizing that the moral duty of a testator to provide for adult children is negated where there is just cause.

[37]         Second, these paragraphs record Goldie J.A.’s view that the 1971 amendment to the WVA, which empowered the court to consider evidence of a testator’s reasons that would otherwise be inadmissible, supported his conclusion that the moral duty analysis must include consideration of the testator’s reasons for disinheriting a beneficiary.

When the legal smoke cleared the two appellants formerly granted 85% of the estate received a total of 60% and the remaining 3 children who had received 5% each in the Will had their share increased from 5 percent each to 13.33%.

Vancouver Estate Litigation Lawyers Tel: 604 602 9000

Varying Unfair Vancouver BC Wills WESA
Varying Unfair Vancouver BC Wills WESA, founder Lorne Maclean, KC

The Court of Appeal carefully reviewed and clarified the law on moral and legal duties. It largely respected  theSupreme Court judge who  had acknowledged the deserved preferential treatment of the appellants. In contrast, it found all five children to have been “dutiful, devoted and loving” and that all 5 had contributed significantly over time to the extended family economy, leading to the moral claim.

“This was not a case of [the deceased’s] moral obligation to [the respondents] being reduced by reason of estrangement or their misconduct,” the Court of Appeal said. “It is not the decision to favour [the appellants] that calls into question whether the will provided adequately for the respondents—it is rather the degree to which they were favoured.”

The appellants therefore each received 30 percent of the estate, with the remaining 40 percent to be divided equally between the respondents.

Varying Unfair Vancouver BC Wills WESA Tel: 604 602 9000

If you have an unfair Wills dispute, a case involving undue influence, a defective Will than needs to be fixed or claims against an estate for constructive trust or joint tenancy of land or bank account disagreement, contact our Varying Unfair Vancouver BC Wills WESA immediately to avoid financial prejudice.