Principles of Varying a Will?

Tataryn v Tataryn Estate, [1994] 2 SCR 807 is the leading wills variation case in BC in which the Supreme Court of Canada considered the grounds by which a court may vary a testator’s will in favour of a spouse or child under the Wills Variation Act (now the Wills, Estates and Succession Act). In particular, the SCC held that a testator must provide for the proper maintenance and support of a spouse or child in accordance with two kinds of obligations; legal and moral. Legal obligations refer to those which the law would impose on a person during his or her life were the question of provision for the deceased’s spouse or child to arise. Moral duties consist of norms that are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These are not two separate tests, but two sides of the same coin. Provided that the testator has chosen an option that satisfies these obligations, the will should not be disturbed.

Applicable Law

Wills, Estates and Succession Act, SBC 2009, c 13:

60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

Tataryn v Tataryn Estate, [1994] 2 SCR 807

In this case, the testator and his wife, Mary, had been married for 43 years, working together and working hard in modest jobs to accrue a significant estate which was held in the name of the testator at the time of his death. During their marriage, the testator and Mary had two sons, John and Edward. The testator disliked John and therefore made a will in his efforts to disinherit John from the estate and ensure Mary would not leave John with anything after she died. The testator’s will left his wife a life estate in the matrimonial house and made her the beneficiary of a discretionary trust of the income from the residue of the estate, which was to be administered by Edward as Trustee. After Mary’s death, the will directed everything to be given to Edward. As a result, John received nothing under the will or the trust it created.
Mary and John brought a claim against the estate under section 2(1) of the Wills Variation Act (now s. 60 of WESA).

Defining “Adequate, Just and Equitable” (p 820-821)

If the phrase “adequate, just and equitable” is viewed in light of current societal norms, much of the uncertainty disappears. Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.

Legal Obligation (p 821-822)

The first consideration must be the testator’s legal responsibilities during his or her lifetime. The desirability of symmetry between the rights which may be asserted against the testator before death and those which may be asserted against the estate after his death has been noted by the dissenting member of the British Columbia Law Reform Commission in its 1983 report on the Act, Report on Statutory Succession Rights (Report No. 70). Mr. Close argues (at p. 154):

A person is under a legal duty to support his or her spouse and minor children. If this duty is not observed then it may be enforced through the courts. That a testator’s estate should, therefore, be charged with a duty similar to that borne by the testator in his lifetime is not troublesome.

It follows that maintenance and property allocations which the law would support during the testator’s lifetime should be reflected in the court’s interpretation of what is “adequate, just and equitable in the circumstances” after the testator’s death.

The legal obligations on a testator during his or her lifetime reflect a clear and unequivocal social expectation, expressed through society’s elected representatives and the judicial doctrine of its courts. Where provision for a spouse is in issue, the testator’s legal obligations while alive may be found in the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp), family property legislation and the law of constructive trust: Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834; Sorochan v. Sorochan, 1986 CanLII 23 (SCC), [1986] 2 S.C.R. 38; Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980. Maintenance and provision for basic needs may be sufficient to meet this legal obligation. On the other hand, they may not. Statute and case law accepts that, depending on the length of the relationship, the contribution of the claimant spouse and the desirability of independence, each spouse is entitled to a share of the estate. Spouses are regarded as partners. As L’Heureux-Dubé J. wrote in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at p. 849:

… marriage is, among other things, an economic unit which generates financial benefits …. The [Divorce] Act reflects the fact that in today’s marital relationships, partners should expect and are entitled to share those financial benefits.

The legal obligation of a testator may also extend to dependent children. And in some cases, the principles of unjust enrichment may indicate a legal duty toward a grown, independent child by reason of the child’s contribution to the estate. The legal obligations which society imposes on a testator during his lifetime are an important indication of the content of the legal obligation to provide “adequate, just and equitable” maintenance and support which is enforced after death.

Moral Duties (p 822-823)

For further guidance in determining what is “adequate, just and equitable”, the court should next turn to the testator’s moral duties toward spouse and children. It is to the determination of these moral duties that the concerns about uncertainty are usually addressed. There being no clear legal standard by which to judge moral duties, these obligations are admittedly more susceptible of being viewed differently by different people. Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought. For example, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits. Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow. While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made: Brauer v. Hilton (1979), 1979 CanLII 746 (BC CA), 15 B.C.L.R. 116 (C.A.); Cowan v. Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.), aff’d (1990), 37 E.T.R. 308 (B.C.C.A.); Nulty v. Nulty Estate (1989), 1989 CanLII 244 (BC CA), 41 B.C.L.R. (2d) 343 (C.A.). See also Price v. Lypchuk Estate, supra, and Bell v. Roy Estate (1993), 1993 CanLII 1262 (BC CA), 75 B.C.L.R. (2d) 213 (C.A.) for cases where the moral duty was seen to be negated.

Balancing Duties and Obligations (p 823)

How are conflicting claims to be balanced against each other? Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator’s life — i.e., claims based upon not only moral obligation but legal obligations — should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority. In doing this, one should take into account the important changes consequent upon the death of the testator. There is no longer any need to provide for the deceased and reasonable expectations following upon death may not be the same as in the event of a separation during lifetime. A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes. Any moral duty should be assessed in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children.

Testator Autonomy (p 823-824)

I add this. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only insofar as the statute requires.

Conclusion

The court first considered the testator’s obligations to his wife, Mary. Their marriage had been a long one and Mary had worked hard and contributed to much of the assets she and her husband acquired. Legally, under the Divorce Act and the Family Relations Act she would have been entitled to maintenance and a share in the family assets had the parties separated. Mary also had a strong moral claim against the estate arising from the fact that she outlived her husband. Mary and the testator regarded their estate as being there to provide for their old age. The court found that it cannot be just and equitable to deprive Mary of that benefit simply because her husband died first. To confine her to such sums as her son may see fit to give her, as the testator proposed, fails to recognize her deserved and desirable independence and constitutes inadequate recognition of her moral claim. The court granted Mary title of the matrimonial home, a life interest in the rental property and the entire residue of the estate after payment of the immediate gifts to the sons.

Lastly, the court considered any duties or obligations to the testator’s sons. The court held that no legal obligation existed and that the moral claims cannot be regarded as very high because there was no evidence that either contributed much to the estate. Due to Mary’s strong legal claims, the sons were each provided with an immediate gift of $10,000, and upon their mother’s death, a residual interest in the matrimonial home and the rental property to be divided one-third to John and two-thirds to Edward.

Estate Litigation Lawyer Angela Price-Stephens

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