Yee v. Yu

Although in British Columbia, the Wills Variation Act allows an independent adult child to apply to vary his or her parent’s will on the grounds that the parent did not make adequate provision for the child, this does not mean that the adult child always succeeds. If the parent leaves his estate to the child’s other parent, the adult child may have an uphill battle convincing the court to vary the will.

This is illustrated by a decision released earlier in the week, Yee v. Yu, 2010 BCSC 1464.

Yung Yu died in January 2007. He had an estate worth almost $1.2 million. In his will, he left his estate to his wife. If she had died before him, his will said that his real estate would go to two of his three sons, and the balance of the estate would be equally among four of his five children. The plaintiff, Tom Yee, did not receive anything under the will, and would not have received anything even if his mother had died before his father.

Tom Yee applied to vary the will under the Wills Variation Act. In his reasons for judgment, Mr. Justice Myers noted that Tom Yee was likely motivated to bring the claim by the provisions in the will leaving gifts to his siblings if his mother had died before his father. But because Tom Yee’s mother survived and was the sole beneficiary, Mr. Justice Myers held that the relative moral claims of the children were not relevant. In dismissing Tom Yee’s claim, Mr. Justice Myers said at paragraphs 17 and 18:

As I have said, the unequal treatment of the children in the gift-over is not an issue in this case because Mrs. Yu survived the father. Likewise, the validity or rationality of the reasons the father gave for that preference is not germane to the case. I therefore do not propose to address the evidence with respect to those issues, particularly since - depending on what Mrs. Yu does with her estate - the matter may be back before the courts in the future.

[18] The question before me is whether this will should be varied when it left everything to the father’s first and only spouse (80 years old at the time of the father’s death) and the child contesting the will is adult, financially secure and thriving, with no special claim against the estate arising from contributions to it. Counsel for the parties have found no case where a will has been varied in similar circumstances. I think the answer to that question is in the negative.