"Caregiving and the Case for Testatmentary Freedom"

Professor Joshua Tate of Southern Methodist University, Dedman School of Law, has written an article, entitled “Caregiving and the Case for Testamentary Freedom,” in which he points to care-giving of elders as a justification for laws giving people freedom to decide who will inherit their wealth. Professor Tate writes from the perspective of an American professor of law, but his thesis is quite relevant to the debate in British Columbia about whether independent adult children should continue to have the right to apply to vary a parent’s will under the Wills Variation Act.

I read Professor Tate’s article from the perspective of a British Columbia lawyer who thinks independent adult children should continue to be able to apply to court to vary a parent’s will.

Professor Tate outlines three different approaches to who inherits a person’s wealth.

At one end, there are some places where the laws provide who gets what on a person’s death. This is forced heir-ship. The deceased either has no ability to choose his heirs, or has only a very limited ability.

At the other end, there are places where each person has complete freedom to leave his wealth to whomever he chooses in his will. This is the approach taken in many American States.

Professor Tate refers to a third approach as a family maintenance approach. The testator may choose whom to leave his property in his will, but certain family members may apply to court to vary the will.

In British Columbia, we take the third approach. Although we have the freedom to decide how to distribute our property at death, a spouse or child can apply to court to vary the will. If the court finds adequate provision has not been made for the spouse or child, the court may make an award the court considers adequate, just and equitable in the circumstances.

Professor Tate argues that allowing complete testamentary freedom encourages children to provide care to their elder parents. Parents can reward or encourage a child to provide care by giving the care-giving child a larger inheritance. The parent (rather than the state or a court) is in the best position to decide on how much to leave a care-giving child. Restrictions on testamentary freedom reduce the incentives to provide care.

In the context of the debate in British Columbia about whether to abolish the write of independent adult children to make a claim under the Wills Variation Act, Professor Tate’s thesis lends some support to those who think independent adult children should not be able to apply. (I am not aware of any serious debate among the wills and estate bar about abolishing the provisions of the Wills Variation Act altogether). At least some of the claims brought by independent adult children are claims against siblings who were their parents’ caregivers. By allowing wills to be varied in favour of the non-care-giving children, B.C. legislation weakens the ability of parents to reward or encourage care-giving.

But I think Professor Tate’s argument is a much stronger argument against a forced heir-ship approach than a family maintenance approach. In a forced heir-ship parents have much more limited ability to reward a care-giving child.

In British Columbia, a parent can reward a care-giving child. It is only if a spouse or another child chooses to apply to vary the will, that the will may be changed by the court. Most wills are never disputed. If there is a claim, the court may take into account the parent’s reasons, and any care provided by the care-giving child when deciding whether to vary a will.

If the Wills Variation Act weakens any incentives to children to provide care (and I think any such effect will be modest), this should be balanced against other important policies. For example, the Supreme Court of British Columbia has applied the Wills Variation Act to redress discrimination against daughters based on their sex in one case, and against a child based on his sexual preference in another.

As an aside, I particularly enjoyed reading Professor Tate’s historical discussion in Part III of the evolution of testamentary freedom from our shared English common law roots (which did not favour testamentary freedom).