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Difference between revisions of "Wills Variation Claims (16:VII)"

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Wills Variation Claims (16:VII) (view source)

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The Supreme Court of Canada’s decision in ''[https://www.canlii.org/en/ca/scc/doc/1994/1994canlii51/1994canlii51.html?autocompleteStr=Tataryn%20v%20Tataryn%20Estate%2C%20(1994)%2093%20BCLR%20(2d)%20145&autocompletePos=1 Tataryn v Tataryn Estate]'', (1994) 93 BCLR (2d) 145 provides a different focus for the determination of a wills variation claim. This is the leading authority in British Columbia on wills variation. The court considered the following factors in deciding what constitutes an “adequate, just, and equitable” provision in a will:
The Supreme Court of Canada’s decision in ''[https://www.canlii.org/en/ca/scc/doc/1994/1994canlii51/1994canlii51.html?autocompleteStr=Tataryn%20v%20Tataryn%20Estate%2C%20(1994)%2093%20BCLR%20(2d)%20145&autocompletePos=1 Tataryn v Tataryn Estate]'', (1994) 93 BCLR (2d) 145 provides a different focus for the determination of a wills variation claim. This is the leading authority in British Columbia on wills variation. The court considered the following factors in deciding what constitutes an “adequate, just, and equitable” provision in a will:


*'''The will-maker’s legal obligations''' – maintenance and property allocations which the law would support during the will-maker’s lifetime; and
:a)'''The will-maker’s legal obligations''' – maintenance and property allocations which the law would support during the will-maker’s lifetime; and
*'''The will-maker’s moral obligations''' – society’s reasonable expectations, based on community standards, of what a judicious person would do in the circumstances.  
:b)'''The will-maker’s moral obligations''' – society’s reasonable expectations, based on community standards, of what a judicious person would do in the circumstances.  


In the more recent case of ''[https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1274/2012bcsc1274.html?autocompleteStr=Dunsdon%20v%20Dunsdon%2C%20(2012)%20BCSC%201274%20&autocompletePos=1 Dunsdon v Dunsdon]'' (2012) BCSC 1274 (CanLII) [''Dunsdon''], the court provides a list of overlapping considerations that "have been accepted as informing the existence and strength of a testator's moral duty to independent children:
In the more recent case of ''[https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1274/2012bcsc1274.html?autocompleteStr=Dunsdon%20v%20Dunsdon%2C%20(2012)%20BCSC%201274%20&autocompletePos=1 Dunsdon v Dunsdon]'' (2012) BCSC 1274 (CanLII) [''Dunsdon''], the court provides a list of overlapping considerations that "have been accepted as informing the existence and strength of a testator's moral duty to independent children:
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*Testator's reasons for disinheriting  
*Testator's reasons for disinheriting  
*Financial need and other personal circumstances, including disability of the claimant
*Financial need and other personal circumstances, including disability of the claimant
*Competing claimant and other beneficiaries"
*Competing claimants and other beneficiaries"


As the court notes in ''Dunsdon'', “[t]he concept of adequate provisions is a flexible notion and is highly dependent upon the individual circumstances of the case. The adequacy of a provision is measured by asking whether a testator has acted as a judicious parent or spouse, using an objective standard informed by current legal and moral norms. The considerations to be weighed in determining whether a testator has made adequate provisions are also relevant to the determination of what would constitute adequate, just and equitable provisions in the particular circumstances.”
As the court notes in ''Dunsdon'', “[t]he concept of adequate provisions is a flexible notion and is highly dependent upon the individual circumstances of the case. The adequacy of a provision is measured by asking whether a testator has acted as a judicious parent or spouse, using an objective standard informed by current legal and moral norms. The considerations to be weighed in determining whether a testator has made adequate provisions are also relevant to the determination of what would constitute adequate, just and equitable provisions in the particular circumstances.”
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:'''NOTE:''' In ''[https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc325/2021bcsc325.html Boughton v Widner Estate]'', 2021 BCSC 325, the deceased had both a legal wife as well as a common law partner at the time of his death. The court confirmed that it is possible to have two spouses who concurrently meet the definition of a spouse under ''WESA'' section 2. The deceased’s estate was split equally between the two spouses.
:'''NOTE:''' In ''[https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc325/2021bcsc325.html Boughton v Widner Estate]'', 2021 BCSC 325, the deceased had both a legal wife as well as a common law partner at the time of his death. The court confirmed that it is possible to have two spouses who concurrently meet the definition of a spouse under ''WESA'' section 2. The deceased’s estate was split equally between the two spouses.


:'''NOTE:''' In ''[https://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc1551/2015bcsc1551.html?autocompleteStr=BH%20v%20JH%2C%202015%20BCSC%201551&autocompletePos=1 BH v JH]'', 2015 BCSC 1551, the BC Supreme Court varied the husband’s will so that the wife, who was separated from but who has not divorced the husband, was entitled to part of the husband’s estate. This significantly deviated from what the wife would have received if they had divorced immediately before the husband’s death.
:'''NOTE:''' In ''[https://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc1551/2015bcsc1551.html?autocompleteStr=BH%20v%20JH%2C%202015%20BCSC%201551&autocompletePos=1 BH v JH]'', 2015 BCSC 1551, the BC Supreme Court varied the husband’s will so that the wife, who was separated from but who had not divorced the husband, was entitled to part of the husband’s estate. This significantly deviated from what the wife would have received if they had divorced immediately before the husband’s death.


== C. Exclusion of Potential Beneficiaries ==
== C. Exclusion of Potential Beneficiaries ==
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As per section 60 of ''WESA'', the court is not bound by the will-maker’s decision and reasons but may consider them. Therefore, the will-maker is not assured of success in their attempt to exclude or less than adequately provide for a spouse or child. For more detail, see above: '''Section VI.A: Application Under the Act'''.  
As per section 60 of ''WESA'', the court is not bound by the will-maker’s decision and reasons but may consider them. Therefore, the will-maker is not assured of success in their attempt to exclude or less than adequately provide for a spouse or child. For more detail, see above: '''Section VI.A: Application Under the Act'''.  


The chances of the will-maker’s will being upheld will be greater if the will-maker provides ''reasonable and rational reasons for the exclusion'''. For example, where the will-maker has already given the person substantial benefits during their lifetime, where the reason is based upon the person’s character, or on the relationship between the will-maker and the potential claimant, the court will be more likely to uphold the will-maker’s wishes.  
The chances of the will-maker’s will being upheld will be greater if the will-maker provides '''reasonable and rational reasons for the exclusion'''. For example, where the will-maker has already given the person substantial benefits during their lifetime, where the reason is based upon the person’s character, or on the relationship between the will-maker and the potential claimant, the court will be more likely to uphold the will-maker’s wishes.  


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