This year, the variation goes on
Happy New Year!
I expect that in this new year, two of the most significant topics that will be discussed will be aging and its impacts on people and their families, and Wills Variation. Both are regularly in the news across the country and there is no sign it will change in the coming year. It will likely be the opposite.
Late last month, reasons for judgement were released in the case of Hancock v. Hancock. The last living parent in the family passed in 2011, survived by five children. Though the deceased did gift much of the family’s land (in the Okanagan) to the children over the years, her residence was owned with one of her children in joint tenancy, and ultimately became the main asset in her Estate.
The family lived in the Okanagan. As the children became adults, some left and others remained in the Okanagan. One of the children left and returned. The deceased’s husband died in 1995.
In the years before he died, the parents’ properties were transferred to the children (not equally). The last transfer was of the deceased’s residence to herself and her daughter as joint tenants. After the deceased moved into a care facility, the residence was sold and the daughter and mother each received approximately $680,000.
The deceased’s half (or what was left of it at the time of her death) comprised most if not all her Estate.
The deceased’s most recent Will, made in 2002, left her Estate to her daughter (the other four children were sons). Two of the children did not participate in the litigation. The three who did included the daughter, who defended as she did not want the Will varied.
In Wills Variation cases of this kind (where both parents were now deceased and survived by children), the Court will first examine whether the deceased owed any legal duties to the children. Here there were none. All the children were independent and not disabled.
The Court then moved to consider what moral duties were owed to the children. In her Will, the deceased did not explain why some of her children were disinherited. The evidence of the Lawyer who prepared the Will did not clarify that issue.
The Court also wrestled with existing case authority relating to reasons for disinheritance (in a Will) of a child. Here unfortunately, no reasons exist for why the two Plaintiffs were disinherited. The Court did its best to apply existing, though difficult, case authority.
The Court carefully considered the financial situations of the Plaintiffs, their relationship with their late mother, and concluded that the Will should be varied and gave one Plaintiff $125,000 and the other, $75,000.
The Court does not always consider a person’s financial situation in these cases, but can where the Estate is large enough. But the result was that the daughter was left with approximately $300,000 from the Estate.
Wills Variation litigation is difficult. Aside from considerations of cost, it creates a strain on the family. Relationships change, perhaps irrevocably. It is not clear why the late mother did not make a new Will after her residence was transferred to herself and her daughter or after that residence was sold. It would probably have helped had she made one.
The Will created considerable uncertainty because first, given all the transfers of property to children in the last 20 years, with differing values, equality (which the late mother probably would have wanted) of distribution was clearly not achieved.
Second, without reasons in the Will for disinheritance of four of the five children, it was impossible for the children (and the Court) to understand what their late mother really wanted. Those two factors may have been the main ones in the launching of the litigation.
Therefore, though I have said it before many times, I will repeat myself, that some sort of meeting or careful planning by the late mother might have averted this litigation or might at least have helped children understand what she really wanted.
This column ran in the Richmond Review on January 7, 2015.