Wills Variation Act: A Summary of the Principles

This is my fourth post on the British Columbia Wills Variation Act, RSBC 1996, c. 490. As I discussed in the introductory post, the Wills Variation Act gives the court the power to vary a will, if in the court’s opinion the maker of the will (the “testator”) did not make adequate provision for the testator’s spouse or a child. The court may then make such provision as the court considers adequate, just and equitable in the circumstances.

I have discussed the fact that a legally married spouse, a common law spouse who had been living a marriage-like relationship with the testator for at least two years at the time of the testator's death, and the testator’s natural and adopted children (but not stepchildren) may make an application under the Wills Variation Act in my second post.

In my post "What is Adequate, Just and Equitable?," I discussed the leading modern Supreme Court of Canada case on the Wills Variation Act. In Tataryn v. Tataryn, [1994] 2 S.C.R. 807, the Supreme Court of Canada said that courts should consider the testator’s legal obligations to the testator’s spouse and children at the time of death first, and then the testator’s moral obligations.

Today, I am going to quote the best summary that I have been able to find of the principles that the courts consider when deciding Wills Variation Act cases. It is from Madam Justice Satanove’s decision in Clucas v. Royal Trust Corporation of Canada , 1999 CanLII 5519 (B.C.S.C.).

I will provide a summary of the facts of the case first.

When Violet Clucas died, she left an estate worth about $440,000. She had two children and five grandchildren. In her will, after some cash gifts, she set aside one third of her estate to be invested, and the income from the investments paid to her son Terry Clucas. The court found that the investments would generate about $7000 to $8000 per year for Terry Clucas. The trustee was not given any discretion to use the capital for Terry Clucas. On Mr. Clucas’s death the capital of this third would go to the grandchildren. The remaining two thirds of the estate were to be held in trust for four of the grandchildren.

In her will, Violet Clucas said that she had amply provided for Terry Clucas during his lifetime, giving him cars and money.

Terry Clucas was 53 years old. He suffered from Parkinson’s, was severely physically disabled, and could no longer work outside the home. He lived in a care facility, and he and his wife had combined incomes of just under $37,000 per year.

The court found that Terry Clucas did not share a happy relationship with his mother, but that they were not estranged either.

In her reason’s for judgment, Satanove J. set out the competing principles that the courts consider as follows:

1.The main aim of the Act is the adequate, just and equitable provision for the spouses and children of testators. (Tataryn v. Tataryn Estate,[1994] 2 S.C.R. 807)

2.The other interest protected by the Act is testamentary autonomy. In the absence of other evidence a Will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only insofar as the statute requires. (Tataryn, supra)

3.The test of what is "adequate and proper maintenance and support" as referred to in s. 2 of the Act is an objective test. The fact that the testator was of the view that he or she adequately and properly provided for the disinherited beneficiary is not relevant if an objective analysis indicates that the testator was not acting in accordance with society's reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards. (Tataryn, supra; Walker v. McDermott, [1930] S.C.R. 94; Price v. Lypchuk Estate (1987), 11 B.C.L.R. (2d) 371 (C.A.); Dalziel v. Bradford et al., (1985), 62 B.C.L.R. 215 (B.C.S.C.))

4.The words "adequate" and "proper" as used in s. 2 can mean two different things depending on the size of the estate. A small gift may be adequate, but not proper if the estate is large. (Price v. Lypchuk Estate, supra)

5.Firstly, the court must consider any legal obligations of the testatrix to her spouse or children and secondly, the moral obligation to her spouse or children. (Tataryn, supra)

6.The moral claim of independent adult children is more tenuous than the moral claim of spouses or dependent adult children. But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made. (Tataryn, supra)

7.Examples of circumstances which bring forth a moral duty on the part of a testator to recognize in his Will the claims of adult children are: a disability on the part of an adult child; an assured expectation on the part of an adult child, or an implied expectation on the part of an adult child, arising from the abundance of the estate or from the adult child's treatment during the testator's life time; the present financial circumstances of the child; the probable future difficulties of the child; the size of the estate and other legitimate claims. (Dalziel v. Bradford, supra and Price v. Lypchuk, supra)

8.Circumstances that will negate the moral obligation of a testatrix are "valid and rational" reasons for disinheritance. To constitute "valid and rational" reasons justifying disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance. (Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (B.C.C.A.); Comeau v. Mawer Estate, [1999] B.C.J. 26 (B.C.S.C.); and Kelly v. Baker (1996), 15 E.T.R. (2d) 21 (B.C.C.A.))

9.Although a needs/maintenance test is no longer the sole factor governing such claims, a consideration of needs is still relevant. (Newstead v. Newstead(1996), 11 E.T.R. (2d) 236 (B.C.S.C.))

Madam Justice Satanove awarded Terry Clucas a lump sum of $200,000 in place of the income from the one third of the estate.

[Since I wrote this post, I have posted the following other article on the Wills Variation Act:
"Time Limits for Bringing a Wills Variation Act Claim" here.]