Not all Provinces allow for variations of Wills. For example, in Ontario
and Alberta, a Will is not subject to variation. It stands as is (with some
exceptions), unless it is attacked for other reasons (such as themental capacity
of the Testator).
In British Columbia, the law is different. Spouses and children of deceased
persons can seek a variation of their Wills, if they feel that they were not left
a just, adequate and fair portion of the Estate. The law has evolved over the
Century or so since it was first enacted in BC. Our Courts, in examining
cases, consider the legal duty(ies) that may be owed to the spouse or child, as
well as the moral duties that may be owed. It is not always a straightforward
analysis the Court is called on to make, partly because the Court also
considers, in every case, the freedom of the Testator to bequeath her or his
Estate as they see fit.The Court, therefore, has to seek a balance between these
In more recent times, some unique cases have come before the Court for
consideration. In March, such a case came before the BC Supreme Court.
The case is known as Rawlins v. Rawlins. Here, the parents had three children.
They made Wills in 1977 which were relatively common, in that each parent
left their Estate to the surviving parent and, when they were both gone, the
Estate was left in equal shares to the children, who were all adults at the date
both parents were deceased.
The Father died in 2016 and the Mother died in 2018.
Despite the equal distribution stated in the Wills, one of the children
challenged the Mother’s (2nd to die) Will on the basis that he had performed
what amounted to full time care giving for the parents, by 2014. He had been
looking after the parents before that but, after losing his job in 2014 he chose
to devote his time instead to looking after his parents on a full-time, day to
day basis.That included purchasing groceries, maintaining the house, taking
the parents tomedical appointments (including a special one to Chicago, with
his Father, to consult with a Cardiologist, and assisting significantly with his
Mother’s rehabilitation following a fall and broken leg. His efforts helped to
return his Mother’s ability to walk).
The other two children were independent and lived on their own. They
were much less involved in the care of their parents, though they had a
good relationship with them. The caregiving child felt that his parents had a
“heightened” moral obligation towards him and so he sought variation of the
Will accordingly which, if successful, would give him approximately threequarters
of the Estate.
The Court’s decision
The Court had trouble with some of the evidence. The caregiving child, in
his testimony, appeared to the Court to be overstating his contribution in
certain aspects. His maintenance of the house was less significant than he
stated. He also testified that his Father offered to pay him $25,000 per year
to look after them but that evidence was not independently verified (he also
said that he declined the money). However, the Court did find that, for the
caregiving aspect, the parents were “unjustly enriched” (a legal term) by their
son’s caregiving and the Court took that into account.
The Court also considered that, though the Father offered his son the pay in
order that he look after them, when the Father died, the survivingMother did
not specifically continue that offer and she did not change herWill.The Court
seemed to feel that because she did not change her Will, that her intention,
despite all the work her son did, was to bequeath her Estate equally to her
The Court held that the caregiving son was entitled to compensation for the
caregiving work he did (taking into account that he lived at the house rent
free). It amounted to approximately $115,000 (less a portion of the house
taxes payable by the son in the time following the death of their Mother).
The total value of the Estate was about $2.5 million, though it was higher
by the time of the Trial. Certainly each child still received a substantial
The first point I make is that the cost of this litigation most certainly was
high. The judgment came after an 11 day Trial. The Will was not varied,
except that the Plaintiff was given compensation for his work. Given the equal
distribution of the Estate described in theMother’sWill, generally it is difficult
to have such a Will varied.The Court carefully and thoroughly analyzed the
case (the judgment is over 60 pages) and the reasons are very well written.
It appeared that the caregiving son helped his parents significantly as their
health declined but without any further Estate planning by the parents, it
did not lead to a variation of the Will. The Mother apparently made
a comment one day to a neighbor that the caregiving son
was going to “get everything”. Such a comment, not backed
by anything in writing to cement that apparent statement
of intention, and without any other independent,
confirmatory evidence, will not likely act to see a Will
varied.The Court’s decision was right, in my opinion.
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