Whether you’re a hockey fan or a child beneficiary in a Will, better to be here than in Ontario
In British Columbia, the Wills Estates and Succession gives children and spouses significant rights in connection with Estates. Whether married or married-like, biological or adopted, eligible persons may seek to vary the Will of a deceased person if they feel that they are not fairly provided for in that Will. In a Will Variation proceeding, a Court will consider the deceased person’s legal and moral obligations vis-à-vis the person seeking relief.
If that eligible person happens to be an NHL hockey fan, and is pursuing these rights, it can be a welcome distraction from the challenges of following our local team.
Arguably, it is worse if you live in Ontario. The legislation in that Province allows relief for persons who are spouses and children of a deceased person to get support from the Estate, provided they can prove a legal obligation the deceased had to support the person. So the person seeking the relief cannot have the Will varied and the Court will not consider any moral obligation the deceased person may have had towards the spouse or child. Therefore, an independent adult child will have no claim to the Estate.
To top it off, their team is the Leafs (I’m not considering the Senators). Clearly, not an easy situation.
A recent British Columbia Supreme Court case, called Jung v. Poole Estate, is extreme on its facts but it illustrates a dramatic difference in approaches between B.C. and Ontario.
The deceased died in 2017 and was survived by twins, who are adults in their 30’s. Each are married. Their Mother died when they were 4 years of age. Their Father (the deceased) was in a brief relationship with their Mother and on learning she was pregnant, apparently wanted her to undergo an abortion. She refused. Until she died, the deceased was not involved in their lives. After the Mother’s death, a custody case ensured, involving the Father and the twins’ maternal grandparents, in Alberta. The grandparents were successful in the case (which was a 12 day Trial) and raised the twins. The Father, having fought the custody battle, then again became uninvolved in his daughters’ lives.
The deceased’s Will not only disinherited the Twins, but contained a clause stating that if the Will was contested, the Executor was to defend the claim and expend whatever was necessary to do so.
Some time prior to the litigation, the twins discovered that their Father had wanted an abortion. This affected them to some degree in their adult lives.
The twins challenged the Will.
Though the Court found no legal obligation owing by the deceased to his daughters (they were independent adults), the issue for the Court was whether there was a moral obligation owing. It did not take the Court particularly long to reach its decision. The Court found a moral obligation. That obligation beings when the child is born. The deceased was uninvolved in his childrens’ lives, except around the time of the custody case. And since that time (over 25 years), he did not seek to contact them. Though the deceased’s Counsel argued that neither of the parties reached out to the other over the years, the Court found that the obligation was owed by the Father and as one case stated, “the Will was his last opportunity to do right by his child.” The Court held that the deceased had a strong moral obligation to “attempt to make up for his desertion of them in the Will.” The disinherited daughters were each awarded 35% of the Estate. The named beneficiaries in the Will were each given 15% of the Estate.
This case was significant, in that the twins surely deserved some portion of the Estate, on the complex facts of this case. The decision appears to be not only correct in law but appropriate.
However, from a recent article by the respected Ontario law firm of Hull & Hull, it appears that had this case been an Ontario case, the daughters would have been entitled to nothing from the Estate, because they are independent adults. Their Father would have had, under Ontario law, no moral obligation to provide for them in his Will. It would appear that justice was served in British Columbia (and don’t take my hockey comments too seriously !).