One person, two families, one Will (Variation)
The B.C. Court of Appeal, earlier this week, released reasons for judgement in the case Scott-Polson v. Lupkoski, whose facts are somewhat complex.
The deceased had six children in her first marriage, and three in her second marriage. She died in 2010, aged 80. Her Estate was valued at just under $800,000. In her Will, she bequeathed a one-quarter interest to each of the three children from her second marriage, and divided the remaining quarter among the six children from her first.
The first-marriage children sought a variation of the Will, while a son from the second marriage claimed the full interest in the major asset of the Estate (a B.C. property). At Trial, the Court declined to vary the Will, except for a bequest to one of the six children who was disabled.
The son appealed for the interest in the property. He claimed that he contributed a lot of work over the years and that his parents 
told him they would give him the property.
The Court considered the sad plight of the nine children, whose mother endured two unhappy marriages and lived in relative poverty. But since her second husband had contributed much more to the accumulation of the Estate, the deceased felt her second-marriage children should have most of her Estate.
Meanwhile, the son’s claim was denied, partly because as the Court felt that the benefits he received from his mother outweighed the contributions he made to the property. Moreover, the deceased’s reasons for the distribution under her Will were valid and rational, so the Court felt it had to respect her wishes.
Although the Estate was accumulated during the second marriage, I suggest that the deceased probably also made some contribution to it. So it may seem somewhat unfair to benefit one set of children over another, given that the Estate value is in no small part the result of market forces that raised the value of the Estate’s major asset over the time of the second marriage.
This case is one where a Court respected the freedom of the deceased, even though one might question whether the six children from her first marriage drew the short end of the stick.
This ad ran in the Richmond News on October 10, 2013.