Kish v. Sobchak Estate: Application of Family Law to Wills Variation Cases

Wills variation cases in British Columbia and family law are related. The Family Law Act deals with division of property and support on the breakdown of marriages and common law relationships, while Part 4, Division 6 of the Wills, Estates and Succession Act deals with obligations of a deceased spouse to make adequate provision for the surviving spouse. With changes to legislation governing both family law and succession law in recent years, it will be interesting to see how the courts adapt and apply principles from one to the other.

In the leading modern case on wills variation, Tataryn v.Tataryn Estate, [1994] 2 SCR 807, the Supreme Court of Canada  said that when determining whether a will maker has made adequate provision for his or her spouse or children in a will, the courts should consider whether the will-maker met his or her legal and moral obligations. In determining whether the legal obligations to a spouse are met, the courts are to consider what the spouse would have received if the relationship had broken down. Madam Justice McLachlin (now Chief Justice) wrote,

The legal obligations on a testator during his or her lifetime reflect a clear and unequivocal social expectation, expressed through society's elected representatives and the judicial doctrine of its courts.  Where provision for a spouse is in issue, the testator's legal obligations while alive may be found in the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp ), family property legislation and the law of constructive trust: Pettkus v. Becker, [1980] 2 S.C.R. 834; Sorochan v. Sorochan, [1986] 2 S.C.R. 38; Peter v. Beblow, [1993] 1 S.C.R. 980.  

The rationale for looking at family law is to provide symmetry between obligations between spouses during their lifetimes, and on the death of one.

In some wills variation cases, the courts have done a fairly detailed analysis of how property would have been divided on a notional breakdown of the marriage or common law relationship, while in others this appears to be less central to the decisions (which may reflect the evidence and how the lawyers presented each case).

I have written two posts on the recent Court of Appeal decision in Kish v. Sobchak Estate, 2015 BCCA 65, one dealing with the facts and decision, and the other with the amount of deference to be given by the Court of Appeal to a judge’s findings of facts in a wills variation summary trial.

Although not central to the reasons for judgment, a couple of paragraphs in the Kish decision caught my eye.  The court appears to me to be placing less emphasis on family law. Madam Justice Newbury for the Court wrote:

[48]        The Court in Tataryn (which was on appeal from this province) suggested that where provision for a spouse is in issue, guidance concerning the testator’s legal obligations while he or she was alive may be found in the Divorce Act, family property legislation, or the law of constructive trusts. The Court, however, did not carry out a detailed examination, or make specific findings, concerning what property or how much support Mrs. Tataryn would have been entitled to in the event of a separation. The Court awarded her certain real estate and the residue of her husband’s estate after allowing for gifts to the testator’s sons.

[49]        I infer that the analysis of legal obligation need not be a detailed or exact one, given the difficulty of drawing a direct analogy between the consequences of a marriage breakdown – which leaves both spouses with needs and obligations – and the death of a spouse. McLachlin J. stated that “there will be a wide range of options, any of which might be considered appropriate in the circumstances.” (Tataryn at 824.) An action under the WVA should not normally become a proxy for divorce proceedings, complete with the elaborate features and special rules applicable to a family law trial.