Generally speaking, the rule of thumb in Canadian estates law is that an estate should be distributed according to the wishes of the deceased as expressed in a final will and testament, and those wishes should be respected and not be interfered with lightly.

As a result, courts are generally reluctant to interfere with the wishes of a deceased to effectuate some alternative series of bequests. However, there are exceptions to this rule. One such exception is that a child or spouse of a deceased person may seek a variation of the will in circumstances where the will, as written, does not adequately provide for them.

In this blog, we explore how and when a person may successfully seek a variation of a will on these grounds.

Deceased ‘Gives’ Child to His Sister

The case of Kan v Cheong involved a somewhat complicated family history. In that case, the testator was the biological father of three daughters. When the eldest daughter was four years old, she was taken from the only home she had ever known to live with the testator’s sister and her husband, who were childless. Although they never formally adopted the eldest daughter of the testator, the couple raised her as their own in relatively grand circumstances compared to the siblings who remained with the testator and his wife, who lived in poverty.

Children Grow Up in Disparate Circumstances

After her ‘adoption’ by her aunt and uncle, the eldest daughter enjoyed a privileged life compared to the siblings she had left behind. The house she was raised in was located in a prestigious neighbourhood and included many modern amenities and access to plentiful, nutritious food. She attended private schools and enjoyed many material pleasures, such as clothing and toys. Conversely, her sisters lived in poverty for much of their childhoods. However, each received a good education and enjoyed close relationships with their father.

Over the years, the eldest daughter’s relationship with her father became a rather distant one of niece/uncle, as opposed to parent/child. Her biological father provided her with no financial support when she relocated to Canada from Hong Kong, and she provided him with no financial support throughout his life. However, she testified that this is because whenever she offered assistance, her father declined. After all, it was unnecessary.

Deceased Bequeaths Very Little to ‘Niece’ Compared to Other Children

Upon his death in 2021, the deceased’s will revealed that he left only $10,000 to the daughter whom he had given to his sister, whom he referenced throughout his will as his ‘niece.’ He also left $10,000 to the sister to whom he had given his child and $20,000 to his goddaughter. The bulk of his estate was to be divided equally among his “two daughters” (meaning, the two whom he had not given away and had raised all their lives) such that each was expected to recover approximately $340,000 after distribution following the terms of the will, as written.

Daughter/Niece Seeks Variation of the Will

When the eldest daughter learned of the terms of the will, she commenced an application under section 60 of BC’s Wills, Estates and Succession Act (WESA) to seek will variation. In her application, she asserted that she was entitled to a larger portion of the estate than bequeathed by her father because it was unfair that she did not share equally in the estate proceeds as one of his biological children.

How Can a Child/Spouse Seek Variation of a Will?

The WESA has two primary objectives: to ensure that a will provides just, equitable and adequate support for spouses/children of the deceased and to protect the autonomy of the deceased in making the will. Importantly, the protection of the deceased’s autonomy is a secondary consideration to the equitable and just distribution of the estate, which means that if amendments are required to a will to affect the just resolution of the estate, then the court will do so, even though it means interfering with the deceased’s autonomy to decide for themselves how they would like their estate distributed post-death.

Section 60 of the WESA dictates that any spouse or child of a deceased who feels that the will has made inadequate provision for them may seek a variation of the terms of the will.

In assessing such an application, the court first undertakes to ascertain whether the will makes ‘adequate provision’ for the spouse/child in light of current legal and moral norms and the information available to the deceased when the will was created. In this context, the court considers “legal norms” as legal obligations the deceased person owes to their spouse/dependent children. Significantly, parents are not generally considered to have a legal obligation toward adult, independent children unless the child contributed to the estate. “Moral norms” in this context “reflect society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards.”

How Does the Court Assess a Moral Duty to an Adult Child?

When assessing whether a moral duty is owed to an adult independent child of a deceased, the courts will consider the following factors:

  • The size of the estate and any contributions to it made by the child
  • The strength and nature of the relationship between the parent and child
  • The reasonable expectations of the child
  • The living standards of both the child and the deceased parent
  • The reasons cited by the deceased for disinheriting the child
  • Any pre-death gifts to the child from the parent
  • The financial need and personal circumstances, including disability, of the child
  • Poor character or misconduct of the child
  • Any competing claims on the estate, including by other beneficiaries

When Will the Court Interfere and Vary a Will?

As mentioned above, courts generally seek to respect the autonomy of the testator. They are loathed to interfere with a person’s wishes regarding how they would like their estate distributed. As such, there are any number of ways in which a person may choose to divide their estate upon their death; so long as the will reflects a just, adequate and equitable division of assets between spouse and children, the court will not interfere. As such, if a deceased person disinherits one child from their estate but provides a reason for such disinheritance that is objectively reasonable and valid, then the court will leave the will undisturbed. However, unless the deceased provides a reason to substantiate disinheritance, there is generally a reasonable expectation that adult children will benefit equally from a parent’s estate.

If the court assesses that a deceased person has failed to provide for his spouse or child adequately, then it is up to the court to determine what would be adequate, reasonable, and just in the circumstances and amend the will following the same. The factors listed above, which relate to the interpretation of the deceased’s moral duty to adult children, are also considered by the court in assessing what constitutes just, adequate and equitable estate division.

Did the Deceased Have a Moral Obligation to His Niece/Daughter?

The court was satisfied in this case that the deceased had no legal duty to his eldest daughter (or his other daughters, for that matter) once she became an adult. However, his moral obligation to her was another matter. The court found that the size of the deceased’s estate, which, although modest, was large enough to provide a meaningful gift to each of his three daughters, weighed in favour of a finding of a moral obligation, as did the standard of living enjoyed by the deceased and his eldest daughter (which were similarly average), the fact that no material gifts had been bestowed upon the eldest daughter outside of the will, the reasonable expectations of the eldest daughter and the fact that there was no evidence of poor character or misconduct on her behalf.

The court found it significant that the eldest daughter had become disabled and was thus no longer able to work and was of modest financial means. The court acknowledged that the deceased had been a kind and loving man. However, his decision to give away his eldest daughter had a significant, negative impact on his eldest daughter, who did not understand why she had been given up and had felt abandoned by her father. The consequences of that decision echoed throughout the eldest daughter’s life and caused the significant emotional turmoil she had endured. Although she maintained a pleasant yet distant relationship with her father before his death, she was never able to form a sisterly bond with her biological sisters, who had not been given away. Through their testimony, her sisters appeared to harbour great resentment toward the eldest daughter, and they actively fought for the variation of the will to increase the eldest daughter’s share of the estate.

The court determined that the “shallowness of the relationship” between the sisters was the fault of the deceased. It noted that his role in the breakdown of these family relationships enhances a testator’s moral duty in cases such as these, wherein the court may “discern a moral duty as a means of rectifying the testator’s childhood neglect of the claimant.” Moreover, the fact that the sisters had lived in disparate circumstances when they were raised did not diminish this moral obligation as, although the two sisters who remained with their father did not have access to the materially privileged circumstances in which their eldest sister lived, they each enjoyed a close and loving relationship with their father that had been denied to the eldest daughter.

Moral Obligation Trumps Testator Autonomy

In these circumstances, the court was satisfied that all three daughters had a strong moral claim to a share in the deceased’s estate. In so deciding, the court assessed that the deceased’s explanation for effectively disinheriting his eldest child, that she was, in fact, his ‘niece,’ constituted an objectively invalid and unreasonable justification. As such, the eldest daughter’s valid moral claim to a share in the deceased’s estate was not obviated by any valid and rational reason, which opened the door to allow the court to rectify this injustice.

As a result, the court found there was no legitimate legal basis to depart from the reasonable expectation that adult children of a deceased parent would share equally in the deceased parent’s estate. As such, the court ordered that the will be varied so that each of the deceased’s three daughters would share equally in his estate.

Vernon & Salmon Arm Estate Lawyers Providing Estate Planning Solutions

If you believe a will doesn’t adequately address a parent’s moral obligations to their children, our experienced estate lawyers can provide guidance. We can help you understand your rights and explore legal options to ensure a fair distribution of your loved one’s estate. Contact CM Lawyers in Vernon and Salmon Arm today for a confidential consultation by visiting us online or by calling our Vernon office at (250) 308-0338 or our Salmon Arm office at (250) 803-9171.