Vancouver, BC Wills Variation Act lawyers explain Unfair Wills and the moral duty of the testator to his children who have been left out of or allegedly dealt unfairly within the will.
Contact us now. Call us toll-free at 1-877-602-9900. Deadlines apply so do not delay.
What happens when a parent dies and leaves some of his or her children out of the Will? Can those children apply to Court for a variation to the Will? The answer is yes, but the final outcome is frequently difficult to predict and is highly dependent on the particular facts of each case.
Nevertheless, the Supreme Court of Canada has ruled recently that parents sometimes owe a “moral obligation” in addition to any “legal obligation” to their adult children, even those who are otherwise financially independent. The Supreme Court of British Columbia was required to interpret and apply the rules of “moral obligation” in the recent decision of Gray v Gray 2012 BCSC 1310.
The facts of the case were this – James Gray lived his whole life on Gabriola Island. When he died he left behind four adult children – three from his first marriage and one from his second marriage. The total value of his estate was approximately $790,000 and was comprised almost entirely of a chunk of land he owned on the island.
Mr. Gray’s Will provided for a $10,000 cash payment to each of his adult children from his first marriage, (David, Darlene, and Gerald), and that the balance of the Estate, (the land on Gabriola Island), valued at approximately $700,000, go entirely to his only child, (Daryl), from his second marriage. Upon learning of this provision David & Gerald, who had each been gifted only $10,000, applied together to the Court for a variation to the Will pursuant to s. 2 of the Wills Variation Act, R.S.B.C. 1996, c. 490, on the grounds that their father had failed to make adequate provision for their proper maintenance and support. (Darlene was not a party to the action because she brought a separate against the Estate that had already been settled.)
None of the adult children had any real assets of their own and at the time of trial. All of the children have struggled to various degrees to support themselves in adulthood and David was living in a basement room in a rooming house in Surrey that had 10 other residents. David’s only source of income was $610 a month in social assistance benefits and his rent was $500 a month. He had last had employment in 2001 due to ongoing difficulties with anxiety, depression, and agoraphobia. He had also experienced prolonged periods during which he had been homeless.
It is fair to say that David, Darlene, and Gerald had become estranged from their father, while Daryl had grown up with and maintained a strong bond with his father. The Court noted that estrangement may, in some cases provide a rational and reasonable basis for an inequitable division of an Estate between siblings, (such as where the estrangement was almost entirely by choice of the adult child), but noted especially the following:
[159] In McBride v. Voth, cited earlier, at para. 132, Justice Ballance reviewed… similar cases dealing with estrangement between an adult child and testator as a valid reason for disinheritance or unfavourable testamentary treatment, and summarized the law as follows:
The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children.
In other words, if it is the parent who is largely responsible for the estrangement, then, in most cases, that will not constitute a valid reason to exclude adult children from their “equitable” share of the Estate.
The Court contrasted this with the following cases where it had been the children who were responsible for the estrangement:
[174] I have read and considered cases included in the defendants’ book of authorities – Hall v. Hall, Bell v. Roy, and Kelly v. Baker, in particular. These are cases in which courts dismissed wills variation claims advanced by independent adult children….
[175] Kelly v. Baker was a case with many different facts than in the case at bar. Kelly v. Baker was a case involving parental-child estrangement in circumstances where it could not be said that the testatrix was at fault. The plaintiff son had snubbed the testatrix – his mother – at his grandmother’s funeral and refused to visit his dying father (who predeceased the testatrix) in the hospital, causing the testatrix great emotional upset. He arrived late for his father’s funeral, refused to sit with the rest of the family, declined to attend the reception at his mother’s home following the funeral, never contacted his mother to express his condolences to her after his father’s death, and stated that he felt no love or affection for her.
[176] Hall v. Hall is also a case involving many different facts; there the court also concluded that the estrangement between parent and the adult child was the fault of the child and that the parents’ reasons for disinheriting their son were valid and rational.
In the case at bar, David, Darlene, and, in particular, Gerald, had made several attempts to have a relationship with their father. The Court determined that the failure in those attempts lay almost entirely with James Gray. It noted as follows:
[162] Once the children were adults, David and Gerald Gray attempted to rebuild the bond with their father but mostly they had to do the running. In earlier years David Gray did make trips to see his father and his paternal relatives in Nanaimo and in Victoria and did visit his father’s home on Gabriola. Gerald also visited his father, albeit the visits were generally combined with trips to Gabriola to visit his mother. Although James Gray attended Gerald Gray’s wedding and got along with Gerald’s former wife and Gerald’s daughter, he never once travelled to Pemberton to visit Gerald’s home. In fact, he made no effort to visit any of his sons or his daughter at their homes.
[163] In my view, any distance or estrangement between James Gray and any of his three oldest adult children does not negate the moral duty he owed and indeed, should have prompted him to attempt to rectify the lack of emotional and financial support he provided to his children while they were growing up.
[164] If Daryl Gray gave comparatively more love and support to his father it can hardly be unexpected. He lived with his father throughout his childhood and as a young adult. He received love, support, and attention from his father in return. He was given the opportunity to develop a close and loving bond with his father while the plaintiffs were denied that opportunity by their parents’ divorce – a circumstance beyond their control – and by James Gray’s own choice to absent himself from their lives following the separation. None of the Gray children provided physical care for their father during his terminal illness – he died before any of them had to opportunity to do so.
As it noted, the Court’s power to vary or modify the terms of a Will comes from the following:
[109] Section 5 of the Wills Variation Act provides:
(1) In an action under section 2 the court may accept the evidence it considers proper of the testator’s reasons, so far as ascertainable,
(a) for making the dispositions made in the will, or
(b) for not making adequate provision for the spouse or children,
including any written statement signed by the testator.
(2) In estimating the weight to be given to a statement referred to in subsection (1), the court must have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement.
[110] Section 2 of the Wills Variation Act reads:
Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court’s opinion, made adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the spouse or children.
In referring to the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, the BC Court noted that:
[117] The Supreme Court of Canada noted that different courts had arrived at different interpretations of the meaning of the phrase “adequate, just and equitable” in s. 2 of the British Columbia Wills Variation Act…
[118] The Court stated also stated:
The language of the Act confers broad discretion on the court….the Act must be read in light of modern values and expectations. What was thought to be adequate, just and equitable in the 1920s may be quite different from what is thought to be adequate, just and equitable in the 1990s….Courts are not necessarily bound by the views and awards made in earlier times. The search is for contemporary justice. p. 11
[119] The Court pointed out that the… courts had long ago rejected the approach that “adequate, just and equitable” meant no more than sufficient to support or maintain the spouse and children. That limited view would have effectively precluded claims by independent adult children… [since most adult children would obviously be able to support and maintain themselves] (added editorial)
[120] The Supreme Court of Canada rejected what it called the “needs-maintenance” approach to interpretation and application of the Act in favour of what it called the “moral obligations” approach.
[121] At page 18, the Court stated:
If the phrase “adequate, just and equitable” is viewed in light of current societal norms, much of the uncertainty disappears. Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations that the law would impose on a person during his or her life where the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms is found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.
[…]
[123] Where all of the competing claims can be characterized as “moral claims”, the Court said:
As between moral claims, some may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority. p. 20
[124] The Court emphasized that in many cases there will be more than one right answer; that
“…there will be a number of ways of dividing the assets which are adequate, just and equitable” and provided that the testator chose one of the acceptable options, the will should not be varied. However, where the testator has chosen to distribute his estate in a way that does not meet both his legal and/or moral obligations, the court should make an order which achieves justice. p. 21 (emphasis added)
Ultimately, the Court, in this case, ruled that Mr. Gray’s Will did not meet his moral obligations to David and Gerald, but at the same time it recognized that Mr. Gray was still entitled to preferentially provide for which every child he felt the closest bond within this case that being Daryl. The final outcome was as follows:
[132] David Gray lives on social assistance; most of which is eaten up by the rent he pays for the modest accommodation he shares with 10 others. He is essentially living a tenuous subsistence lifestyle. In the past, he has sometimes been reduced to living on the streets or relying on the generosity of friends and his sister Darlene.
[133] Gerald Gray earns a reasonable salary but he has struggled to provide for himself and his pre-teen daughter. Until very recently he was the sole support for his daughter, and even now receives very limited child support from his daughter’s mother. He does not own a home and he has debts.
[…]
[181] In this case I am of the view that adequate, just and equitable provision can be made for Gerald and David Gray without dividing the estate equally among the three sons; and an unequal division does provide recognition for the closer bond James Gray had developed with his youngest son as a result of the much different circumstances prevailing when Daryl Gray was growing up in his father’s home.
[182] I direct that the residue of the estate be divided one-half to Daryl Gray and one-quarter each to David Gray and Gerald Gray. The one-quarter share of the residue payable to each of Gerald Gray and David Gray shall be in addition to the $10,000 bequest made to each of them in the will. (emphasis added
Thus the Court found its balance and varied the Will of Mr. Gray by dividing “one-half to Daryl Gray and one-quarter each to David Gray and Gerald Gray.”
If you believe that you have been unfairly left out of a Will, or that the terms of a Will are unfair, please contact one of our experienced Fort St. John, Kelowna, Surrey or Vancouver Wills and Estate lawyers and we will be glad to help.
Call us toll-free at 1-877-602-9900. Deadlines apply so do not delay.
