Wills Variation – it’s about more than just money
It is settled law in B.C. that a child or spouse of a deceased person is permitted to seek a variation of the deceased person’s Will, if that affected person believes that the Will does not provide them an adequate or fair portion of the deceased’s Estate.
Is it all about money? Well, in my opinion, mostly it is not. Certainly, there are cases where the financial aspect is critical and an argument might be made that the “greed” factor (if I can put it that way) is in evidence. On the whole, though, it is not that simple. Wills variation cases involve families and the emotion factor in many cases is significant.
Last month, reasons for judgment were released in a case called Pascuzzi v. Pascuzzi. Interestingly, the Court characterized the case as being “about many relationships, not just one relationship”. No mention was made about money.
The deceased met a woman in 1986. They had what the Court described as an “intense” relationship. The woman became pregnant and the Plaintiff was born in 1987. Though the parties were engaged at the time, their relationship did not last and they did not marry. The Plaintiff is their only child.
The deceased and the Plaintiff enjoyed a good relationship after her birth but in 1989 the deceased entered a new relationship and he married in 1992. That year, his relationship with the Plaintiff deteriorated, after the deceased sent a letter to the Plaintiff’s Mother, in which he felt that the Plaintiff did not want to see him any longer. He suggested that she not visit. That proved to be very difficult, emotionally, for the Plaintiff. What further complicated the Plaintiff’s relationship with the deceased was that he had two children with his new wife, which obviously afforded him less time to be with the Plaintiff. The Plaintiff’s evidence about this was that she never felt part of the deceased’s family, though she visited for Christmas, birthdays and other family events. Over the years, the Plaintiff cried many tears.
In addition, the Plaintiff suffered sexual abuse at age 10 and a sexual assault at age 14. The deceased was not “there” for support when these events happened. He regretted it.
Efforts were made by the deceased to repair the relationship as the deceased grew older. The Court recognized the circumstances of the deceased (his work demands and parenting demands in his new family). The Plaintiff was age 32 and married when, in 2019, the deceased died.
The Court felt that, looking back over the relationships, the deceased, his new wife and the Plaintiff all had some fault, as things stand at present. The deceased failed in the effort to be a parent in the years after he met his new wife. His lack of parenting skills and the Plaintiff’s wounds suffered in her childhood made it difficult for the two of them to maintain a relationship. There were also circumstances beyond everyone’s control, as mentioned. As an adult, the Plaintiff better understood this.
Under the Will, made in 1996, the Plaintiff was disinherited. She was bequeathed a monthly sum, which expired when the Plaintiff reached age 19. There was no other bequest to her. All the Estate was bequeathed to the deceased’s surviving wife.
The Court, in reaching its decision, followed the clear law, which imposes a legal and moral obligation on a Will maker to provide for a child in their Will. While the deceased did not owe legal support to the Plaintiff, who was self-supporting, the Court found the deceased owed a moral support to her. It was noted by the Court that the deceased’s children and his wife’s children did not take part in the litigation and did not testify at Trial (though it was not clear that this had impact on the Court’s decision). The Estate was valued at $1.8 million and the Plaintiff was declared to be entitled to a 30% share. The Court took into account the surviving wife’s situation in ordering this.
This clearly was a case about relationships. The Plaintiff had, seemingly, overcome a difficult childhood and had built a successful career. Still, the Will was made in 1996, when she was age 9, and the deceased had been, in the last years of his life, considering providing for the Plaintiff. He should have made a new Will. Regardless, in my opinion this was a good legal decision under our law. It did not seem that the Plaintiff was simply “out for money” but perhaps was seeking some kind of reconciliation or resolution of her complex and unfortunate relationship with her Father. In my view, these cases are difficult for the family members. I suggest that most cases are not launched lightly, even though there are many cases being litigated across the Province. I suggest that these cases for the most part have a relationship element, perhaps an emotion element as well as a financial element. I would resist any conclusion that they are just about money.