Wills Variation Claims in BC
The Moral and Legal Obligations of Testators in British Columbia
Mar 5, 2008
Under the Wills Variation Act in British Columbia the spouse or child of a testator can apply for a redistribution of the testator’s estate if the claimant can prove that adequate provision has not been made for their proper maintenance and support. The definition of spouse in the Act provides for unmarried couples including same-sex couples that have been co-habiting in a marriage like relationship for at least two years. The definition of a child includes an adopted child but does not include step-children.
The Tataryn Case
The leading case in the interpretation of the Wills Variation Act is Tataryn v Tataryn Estate which was decided by the Supreme Court of Canada in 1994. In that case the court held that the twin purposes of the Act are to ensure that “adequate, just, and equitable” provision is made for spouses and children, while giving appropriate recognition to the interest of testamentary autonomy. However, in cases of conflict between these two purposes, testamentary capacity has to yield to an "adequate, just, and equitable" provision. If the court finds that such a provision has not been made by the will, it is bound by the Act to vary the will to the extent necessary to rectify the inequity.
Legal and Moral Obligations
In determining whether a provision is "adequate, just and equitable" the court uses an objective analysis based upon societal norms. This means that even if the testator honestly believed that he/she was making adequate provision for his/her spouse/children, the court can still vary the will on its determination of how a reasonable member of society would view the provision. The two main factors that the court should consider when determining the adequacy of a provision are:
- the testator’s legal obligations to the applicant; and
- the testator’s moral obligations to the applicant.
A testator’s legal obligations are those obligations that the law would support during the testator’s lifetime. A testator’s moral obligations are defined by society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary standards. Where there are conflicting claims and the size of the estate is not sufficient to satisfy all of the claims, the legal obligations of the testator will outweigh his/her moral obligations.
Obligations to Adult Children
The moral obligations of a testator to adult children are very limited. If a testator provides some benefit to adult children under his/her will and if those children are not dependent on the testator for any reason, the courts will rarely re-write the testator’s will. In the case of independent adult children the courts tend to err on the side of testamentary autonomy out of recognition of the fact that a testator should be allowed in a free society, after his/her moral and legal obligations are met, to deal with their assets as they see fit.
The Rise of Estate Litigation
The Wills Variation Act and its interpretation in Tataryn have significantly expanded the scope of estate litigation in British Columbia. In other jurisdictions the ability of claimants to have an otherwise valid disposition of assets in a will set aside is very limited. This growth in the law has occurred at the same time as a corresponding growth has occurred in non-traditional family groupings. Finally, as the baby boomers have grown older a vast pool of assets has become the subject of wills that over the next couple of decades will form a vast breeding ground for estate disputes. In short a perfect storm is brewing for the rise of estate litigation in British Columbia. However there are ways in which testators can limit the chances of significant conflicts between their loved ones after their deaths and a short consultation with an estate lawyer may save a family significant hardship in the long run.
This article is legal commentary only and should not be taken as legal advice. Consult a lawyer in your area with any particular legal questions that you may have.
