British Columbia introduced dependant relief legislation in 1920 and despite varying interpretations by the courts over time, the legislation itself has remained substantially the same as when it was first introduced. The statute in British Columbia is referred to as the Wills Variation Act (the “WVA”). The WVA permits a Court to vary a Will upon the application of a spouse or a child. While the WVA has no expressly stated purpose, the case law has imported moral considerations in interpreting the statute. One “moral” consideration that has been judicially applied is to ensure that the testator’s adult children are protected from discriminatory treatment that is inconsistent with contemporary “Canadian values”.
Section 2 of the WVA permits a court to modify a deceased’s will if they have not made “adequate, just and equitable” provision to their spouse or children. That provision reads:
Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance of the testator’s wife, husband or children, the court may, in its discretion, in an action by or on behalf of the wife, husband or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the wife, husband or children.
There is no definition of a child under the WVA, thus, an adult biological or formally adopted independent child can apply under s.2 to vary their parents’ will. There has been ongoing debate about what parents’ legal and moral obligations are towards an adult independent child and whether adult children should be entitled to apply where they have no financial need themselves.
For example, in June 2006, the B.C. Law Institute drafted a report which recommended reforming succession law and making changes to the WVA. The Report favoured restricting the eligibility of adult children to only claim relief where they are “unable to be self-supporting owing to special circumstances including mental or physical disability, illness and enrolment in an educational or vocational training program.”
The debate appears to be settled as the Report’s recommendations on this issue have not been taken up. The Wills, Estates and Succession Act (the “WESA”), is expected to come into force in 2012. The WESA keeps most provisions of the WVA substantially unchanged under Part 4 Division 6, including the ability of adult children to apply to vary their parents’ will without restriction. Unless the WESA is modified before coming into force, s.60 of the WESA is almost identical to s.2 of the WVA above.
Given the fact that values of equality and non-discrimination have not yet consistently been embraced by some Canadians, there is a continuing need for adult independent children to be permitted to apply to vary their parents’ will in order to protect Canadian values and eschew discrimination in testamentary dispositions based upon gender, ethnicity, race or sexual orientation.
Claims from Adult Independent Children
Where an independent adult child applies to vary a will under s.2 of the WVA or s.60 of the WESA, the court must determine whether the testator made adequate, just and equitable provision for the child in the circumstances. The circumstances vary depending upon such factors as the size of the estate, financial and medical needs of the child and competing demands from other family members, including a spouse.
In the leading WVA case, Tataryn v. Tataryn Estate, the Supreme Court of Canada noted that the general rule regarding independent adult children is that while their moral claim may be more tenuous than the claim of an under-age child or a spouse, some provision should be made for them by the testator in his or her will unless the size of the estate is too small, there is no compelling reason for that adult child to receive an inheritance or unless there are circumstances which negate the existence of a moral obligation to that adult child.
While trying to balance the interest of the testator’s autonomy with the interests of the adult child, the court will consider fundamental values of Canadian society and whether the testator’s Will is inconsistent with these values. In Tataryn, the Court noted the following:
…the Act must be read in light of modern values and expectations. What was thought to be adequate, just and equitable in the 1920s may be quite different from what is considered adequate, just and equitable in the 1990s. This narrows the inquiry. Courts are not necessarily bound by the views and awards made in earlier times. The search is for contemporary justice.
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.
This continues to be the law. In LaVierge v. Whieldon Estate, the Court recently confirmed that when deciding WVA claims, the court should consider the broader social context:
…the task facing the Court must be understood in the context of the fundamental duty of the Court to satisfy itself that the actions of the testator are consistent with society’s reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards.
Section 5 of the WVA also permits a court to consider evidence of the testator’s reasons for disinheriting (or leaving a relatively small amount) to a child. When looking at whether the moral obligation to provide for an adult child is negated, the court will consider whether there are “valid and rational reasons for justifying disinheritance.” As noted by the Court in Clucas v. Clucas Estate: “to constitute valid and rational reasons justifying disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance.” Further, the onus is on the claimant to show that the reasons given are not valid or rational.
Disinheriting a child for reasons based on gender or sexual orientation and other prejudices do not accord with Canadian values and are not deemed to be rational reasons for justifying disinheritance.
In Patterson v. Lauritsen, the testatrix’s reason for excluding one of her sons from her will was his homosexuality. The Court held that “the fact of homosexuality in today’s society is not a factor which would justify a judicious parent, acting wisely, disinheriting a child.” The Court varied the Will permitting the son a part of the estate.
Similarly, in Peden v. Peden Estate, the testator had three sons and the plaintiff youngest son sought to vary his father’s will. The testator advised his solicitor that the basis for his distributions was that he did not approve of the plaintiff’s sexual orientation. The Court concluded that “homosexuality is not a factor in today’s society justifying a judicious parent disinheriting or limiting benefits to his child.”
Sexual orientation is not the only reason a parent has sought to disinherit an adult child. In Prakash v. Singh, the Fijian-Indian testatrix left small gifts to her three daughters and the residue bulk of her estate to be divided between her two sons. It was agreed that the testatrix’s main reason for the disparity was her tradition that sons should inherit their parents’ estate to the exclusion of daughters except for token amounts. It was held by the Court that that the testarix’s gifts to her daughters were insufficient according to moral obligations of Canadian society where daughters have the same expectations as sons regarding sharing in their parents’ estates.
In Lowres v. Lowres, a mother excluded her son from her will because she disapproved of his marriage to a German woman. Her actions stemmed from prejudice against his marriage which was held to not be a reason for treating him differently from the way she treated her other sons.
In Chan v. Lee, in keeping with his traditional Chinese culture, the testator financially favoured his sons prior to his death and continued to do so after his death through his will. The Court commented:
In any event, I have concluded that the father’s intentions were clear when he gave the company to his sons and when he gave his daughters the monies. Rightly or wrongly, that is what he intended. And whether or not in doing so, he was following a Chinese tradition is irrelevant. It is not the way of this country, and s. 2 of the Wills Variation Act makes that clear.
The above cases demonstrate that certain Canadian values are favoured over testamentary freedom when that exercise of freedom is discriminatory. The WVA, and soon the WESA, are used to assist our British Columbian Courts to step in and ensure that the parting wishes of testators are not inconsistent with Canadian values.
In light of the variety of societal and cultural values in Canada and the differing values amongst them, the courts have concluded that there are common values within Canadian society that must be respected despite a testator’s wishes. Accordingly, it is critical that the WESA continue to allow adult independent children to apply to vary a will, to ensure Canadian values are respected. This does not necessarily impose a homogenous Canadian lifestyle on different cultures as a way of ensuring they assimilate to “Canadian” ways, but rather, it is a method of promoting universal values of equality and non-discrimination.