Legal Obligations and Moral Responsibilities To Surviving Spouses

Surviving Spouses and Children: Do They Have Any Additional Rights?

A testator typically has an obligation to make adequate provisions in his or her will for a surviving spouse and children. In accordance will s. 2 of the Wills Variation Act (now s. 60 of the Wills, Estates and Succession Act, SBC 2009, c. 13), when a surviving spouse applies to vary a testator’s Will, both that testator’s legal and moral obligations to their spouse must be examined. Legal obligations are those that would be imposed by law prior to the testator’s death, and are determined at the time of “notional separation”. Alternatively, moral obligations are society’s reasonable expectations of what a judicious person would do in the circumstances, and thus there is no clear legal standard.

Philp v Philp Estate, 2017 BCSC 625

In this case, the deceased, Mrs. Philp had provided her second husband, Dr. Philp with a life interest in her hobby farm property, which was originally owned by the couple as joint tenants during their 35 year marriage. Mrs. Philp’s Will did not allow her son, the trustee of the estate, to sell, lease or otherwise transfer or encumber the property without the unanimous consent of Dr. Philp and each of her surviving children. Her Will also provided Dr. Philp with the income generated from the residue of the estate until his death, with power for the trustee to pay Dr. Philp amounts out of the capital of the estate as the trustee in his absolute and uncontrolled discretion thinks fit, and an interest as a discretionary capital beneficiary of the residue of the estate. At the time of Mrs. Philp’s death, the value of the estate was $677,000 and Dr. Philp had total assets of approximately $600,000.

Unfortunately this was no benefit to Dr. Philp who was suffering from severe dementia and no longer residing at the property. Dr. Philp’s mental capacity had begun declining over a year after Mrs. Philp’s death. During the time this case was heard, he was living in a private assisted living facility with 24/7 care. The costs were estimated to be $7,000 per month. However, his two adult daughters were considering moving him to a facility closer to them which would result in a significant increase in the cost of living and care expenses in excess of $100,000 per year. As a result, Dr. Philp brought a claim under section 2 of the Wills Variation Act, RSBC 1996, c 490 (WVA), asserting that Mrs. Philp 

did not, by her Will, make adequate provision for him and seeked to vary his present life interest in the farm property to having title on the property. He argued that this would enable him to sell the property and keep the proceeds. His claim was opposed by Mrs. Philp’s five children from her first marriage.

During the couple’s marriage, Dr. Philp had depleted his savings in order to support and maintain Mrs. Philp, the horse business and the farm property. From conversations with Ms. Philp, Dr. Philp asserts that he understood that she was going to provide for him in a greater way than what she had in fact done.

Legal Principles

[54]    As per Tataryn v Tataryn, 1994 SCR 807 (Tataryn), where a spouse or child challenges the will of a testator/will-maker under s. 2 of the WVA (or its contemporary equivalent), two types of obligations must be examined: legal and moral. Legal obligations are those that would be imposed by the law on the will-maker if the question of provision for the claimant arose during his or her life. Moral obligations are “society’s reasonable expectations of what a judicious person would do in the circumstances”: Tataryn at 821. What is just and adequate will vary greatly based on the circumstances of each case.

 [56]    Summarizing the decision in Tataryn, Ballance J. made the following comments in Dunsdon v. Dunsdon, 2012 BCSC 1274 (CanLII) at para. 133:

[133]    All legal and moral claims should be satisfied where the magnitude of the estate permits. In cases where complete satisfaction of all claims is not possible, the competing claims are to be prioritized. Claims that would have been recognized as legal obligations during a testator’s lifetime should generally take precedence over moral claims:  Tataryn, at 823. The court must also 

weigh the competing moral claims and rank them according to their strength. While claims of independent adult children may be more  tenuous than those of a spouse or dependent child, where the size of the estate permits, some provision should be made for them unless the circumstances negate such an obligation:  Tataryn, at 822 – 823.

[57] In balancing the conflicting claims, the Court in Tataryn noted one should take into account the important changes consequent upon the death of the will-maker. As there is no longer a need to provide for the will-maker, the reasonable expectations may differ following a death than in a separation: at 823.

[58] The relevant time for determining whether the will-maker has made adequate provision for a spouse or child is at the date of his or her death — 2013 in this case.

[59] The court may consider the circumstances of the plaintiff, including any reasonably foreseeable changes in the circumstances, as at the date of death, when determining whether adequate provision has been made.

Legal Obligation

In this case, Mrs. Philp did not have a legal obligation to her five children because they were all adults and financially independent. Therefore, the issue in this case was her legal obligation to her surviving spouse, Dr. Philp. As established in Tataryn, “guidance concerning the testator’s legal obligations while he or she was alive may be found in the Divorce Act, family property legislation or the law of constructive trusts” (at para 48). The court also noted at paragraph 79, that in considering whether adequate provision has been made, the value of the estate is important. At the time of Mrs. Philp’s death, her estate had a value of $677,000 and Dr. Philp’s assets totalled $600,000. The court then considered Ciarniello v James, 2016 BCSC 1699, which established that legal obligations to a spouse are considered at the time of “notional separation” immediately prior to the testator’s death (at para 32). As a result, it was determined that there was a strong prima facie argument that Mrs. Philp discharged her legal duty to her spouse because of the close to one-half division of family assets at the time of her death.

Moral Obligation

[90] Turning to the issue of her moral obligations, I note the comment in Bridger v. Bridger Estate, 2006 BCCA 230 (CanLII) at para. 20:
[20] …Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults…

[91] As set out in Eckford v. Vanderwood, 2014 BCCA 261 (CanLII) at para. 56, Dr. Philp’s deteriorating health, i.e. dementia, is not relevant to whether Mrs. Philp made adequate provision for him in her will; rather, only those circumstances existing or reasonably foreseeable at the time of the death of the will-maker are relevant. Evidence of cognitive decline “in or about the fall of 2014” was noticed by Ms. Isaak in her affidavit. This, however, was over a year after Mrs. Philp’s death, and therefore I find his condition was not reasonably foreseeable.

[92] Kish noted at para. 60, the “claims of adult children do not and should not overshadow a testator’s moral duty to a spouse”, especially where the relationship is long. I agree with Saugestad at para. 123, that it is particularly difficult to assess cases where the deceased and surviving spouse have independent adult children from their first marriages.

[93] Kish also noted at para. 61, however, that as set out in Tataryn, “testator autonomy is one of the two interests ‘protected’ by the WVA.” In this case the defendants argue that testator autonomy reflects Mrs. Philp’s clear attachment to the farm and her wish that it should devolve to her children.

The court concluded that there was a strong moral obligation owed the Dr. Philp, who assisted throughout their marriage in trying to make the farm and horse business a success. Furthermore, he provided significant care for Mrs. Philp in his capacity as a physician over and above what most other spouses could do. Their marriage was long and his contributions to Mrs. Philp’s clearly passionate desire to live on the farm and run the horse business were also significant. The court awarded Dr. Philp $300,000, in view that the result would both balance the legal and moral obligations owed by Mrs. Philp to Dr. Philp and give effect as best it can to her clear intention to keep the farim in the family.

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