Wills Variation – Estrangement Does Not Necessarily Negate Moral Duties


The British Columbia Supreme Court recently handed down a Wills Variation Act (“WVA”) decision in McEwan v. McEwan, 2014 BCSC 916.  This case involved a grandfather (“Angus”) who left his entire estate (the “Estate”) to his two granddaughters, overlooking his only son (“Malcolm”).  The Court varied Angus’ Will and award Malcolm a portion of the Estate.

This case was decided under the old WVA, but the relevant sections remain unchanged in the new Wills, Estates and Succession Act.  As with any WVA case, the Court considered whether to use its discretion to vary the Will and make a provision that is adequate, just and equitable in the circumstances for the spouse or child.

In this case, the Court made a variation in favour of the son.  Despite years of estrangement between Angus and Malcolm and Angus’ clear intention to exclude Malcolm from his Will, the Court ordered that Angus’ Estate be divided with 50% going to Malcolm and 25% each to the two granddaughters.  The Court arrived at this decision by undertaking the Tataryn analysis and considering:

  • the will-maker’s legal obligations to support a spouse and minor or dependent children; and
  • the will-maker’s moral obligations toward his or her spouse and children (including adult children).

The first factor is not relevant in this case as Malcolm and the granddaughters are all adults.  The second factor is relevant, but for Malcolm only.  Angus would not owe moral obligations to his grandchildren for the purposes of the WVA because they do not have standing to bring a claim under the legislation.

While Angus and Malcolm were estranged at the time of Angus’ death, their estrangement had only began in the past decade or so, due to an antagonistic relationship between Malcolm and Angus’ second wife (who predeceased Angus, unbeknownst to Malcolm).  In the last months of Angus’ life, Malcolm expressed a wish to see him but Angus turned him away.

The Court found that, given how the estrangement arose, it did not justify Angus disinheriting his son and, therefore, the circumstances did not negate Angus’ moral duty to Malcolm.  Thus, the Court found that the Will did not make an adequate provision for Malcolm.

The case also involved a dispute over whether an investment account was a gift to the two granddaughters or part of the Estate.  The investment account, at the time of trial, was significantly larger than the Estate.  Angus had added his granddaughters’ names to the account four months prior to his death.  To determine whether the account was a gift or part of the Estate, the Court considered the Pecore case, which stands for the proposition that where a gratuitous transfer is made (as was the case here), there is a presumption of a resulting trust.  The presumption is rebuttable where the recipient of the gift can demonstrate that a gift was intended.  In this case, the Court held that the granddaughters successfully rebutted the presumption by demonstrating (through the testimony of the account manager who met with Angus to make the account change) Angus’ intention to make a gift.

This case is a an interesting example of how an estrangement will not necessarily negate the will-maker’s moral obligations to a spouse or children.  As with any case, everything turns on the facts.

Thank you for reading!  And thank you to Cheryl Kornder for assisting in drafting this blog post.