BC Court of Appeal on Wills Variation; changing the Law or clarifying it?

Introduction

Many cases in B.C. are now making their way through the legal system,

where variation of a Will are being sought. Our law permits children

(natural or adopted) and spouses (married or marriage-like) of a deceased

person to seek a variation of a Will, where the person is of the view that they

are not left a fair portion of the deceased person’s Estate.

Our Courts, in deciding these cases, will consider whether the person

seeking variation was owed legal duties by the deceased person (a minor

person whose Father passed away, would be owed legal duties) and whether

the person was owed moral duties (an adult child who cared for her now

deceased Mother but was disinherited under the Will is likely owed a moral

duty by her Mother).

Earlier this month, our Court of Appeal released reasons for judgment in

a case called Tom v. Tang. The case was first heard by the B.C. Supreme

Court, where three of the five children of the deceased Mother (the Father

predeceased the Mother, in 2012) sought a variation of the Mother’s Will. In

the Mother’s Will, two of her children looked after her in her last 3 years of

life and were left 85% of the Estate. The other three children were left only

15% of the Estate.

In the Supreme Court, the Will was held to be unfair and the Court varied

the distribution of the Estate (worth about $2.3 million), to give the two

children $300,000 each and the rest of the Estate was to be divided equally

among the five children. The two children appealed the decision, essentially

on the basis that their Mother’s wishes, as expressed in her Will, ought to

have been followed. The story here is important to review.

Facts

The family arrived in Canada in the 1960’s. The five children were minors.

The parents and the children worked very hard. All money earned, whether

by the parents or the children (from various jobs) was pooled and used

to assist the very close family. In 1971, the family was able to purchase a

grocery store, with an attached house, in New Westminster. The parents

emphasized education. They paid the childrens’ education expenses and, on

graduation from high school, each were given vehicles to use to commute to

University. Eventually, the parents purchased a house in Vancouver and the

family moved there. All the children earned University degrees.

The family remained close, gathered frequently, bought each other gifts and

the children treated their parents very well. There was no estrangement. The

Court found that the children were all devoted. However, two of the children

became primary caregivers as the health of their Mother deteriorated.

The Mother sought to change her Will in late 2014. She met with a Lawyer,

looking to bequeath her house to the two children who were looking

after her. The Lawyer warned her about the possibility of such a bequest

giving rise to a case for variation of her Will. The Mother did not proceed

with changing her Will. A year later, though, shortly before she died (in

December, 2015), she did sign the Will. The house, bequeathed to the two

children, was then valued at about $1.6 million. Meanwhile, the other three

children were left liquid assets worth about $700,000.

The three children did agree that their two siblings deserved preferential

treatment, given the care they provided. However, the 3 children all felt

that the disparity in the amounts they were to receive, was too great. They

launched this legal action.

Court of Appeal decision

The Court was confronted with a well known argument from the two

children who were to receive the house. It was that their Mother’s wishes,

expressed in her Will, ought to be honored. Our law recognizes the concept

of Testamentary autonomy (the ability to do what one wishes with their

assets) but in these kinds of cases, the Court tries to achieve some balance,

rooted (arguably) in fairness.

The other 3 children, meanwhile, argued (reasonably) that all five children

contributed over the years to the economic success of the family, including

the contributions they made to the acquisition of the house. They argued

further that the Court must consider not only the wishes of their Mother but

also the principle of a “judicious parent”, taking into account the behavior

and activity of all the children over many years, rather than just the last 3

years of their Mother’s life.

The Court noted that none of the five children were in need.

The Court found that the case law argued by the two children and the

different case law argued by the other 3 children were ultimately not in

conflict. The Court said that ultimately, a Will maker’s moral duty has to be

assessed “from the viewpoint of a reasonable Testator and that moral duty

may be negated where there is just cause”.

The Court allowed the appeal of the 3 children. The two children who cared

for their Mother in the last 3 years of her life were each given 30% of the

Estate. The other 3 children were each given 13.3% of the Estate.

Conclusions

In my opinion, the Court here did not change the law but did provide some

clarification. The Court agreed that all 5 children contributed to the family’s

economic success. In addition, the Court recognized that the

good care provided by the two children in the last 3 years

of their Mother’s life only lasted 3 years! Their Mother’s

wishes were followed as reasonably as possible, and so

the Court did follow existing law by balancing all the

interests as expressed by the 5 children in this case. It is

a good decision.