In British Columbia, if a person dies leaving a Will which does not, in the Court’s view, make adequate provision for their spouse or children’s maintenance and support, the deceased’s family members can bring a claim in the BC Supreme Court under s.60 of the Wills, Estates and Succession Act, SBC 2009, c.13 (“WESA”), to vary the deceased’s Will. If such a claim is successful, the Court may order provision be made from the deceased’s estate for that family member, in a manner and amount that the Court considers adequate, just, and equitable in the circumstances.
The determination of whether a will-maker has left adequate provision is grounded in:
(a) the will-maker’s legal obligations, such as to their surviving spouse or minor children[1]; and
(b) moral obligations, such as to their adult children[2], at the time of their death.
It does not follow from s.60, however, that a parent is enjoined in every circumstance from favouring one adult child over others, or disinheriting an adult child altogether. Such treatment can be upheld by the Court in circumstances where the will-maker has “valid” and “rational” reasons for their chosen distribution.
Nearly 30 years ago, in Tatatryn v. Tataryn Estate, [1994] 2 SCR 807, the Supreme Court of Canada made clear that a will-maker’s reasons, even those which are “valid” and “rational”, must be assessed objectively, based on society’s reasonable expectations of what a judicious parent would do in the circumstances, with reference to contemporary community standards and society’s reasonable expectations.
Over time, in BC, the s.60 jurisprudence underwent an interesting shift, developing an analytical framework that appeared to be in tension with the core reasoning in Tataryn. Specifically, a line of authorities emerged which suggested that where a will-maker’s reasons are “valid” (that is, factually true) and “rational” (in the sense of being logically connected to the act of disinheritance), even significantly unequal treatment of the will-maker’s adult children would not be disturbed by the Court. It appeared that the will-maker’s reasons did not need to also be objectively reasonable.
For example, in Hall v. Hall, 2011 BCCA 354, the BC Court of Appeal held that:
[43] … [I]t is not necessary to find the reasons were justifiable. It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance: Kelly v. Baker (1996), 82 B.C.A.C. 150 at para. 58.[3]
On its face, this framework appeared to ignore the objective test set out by Tataryn.
In Tom v. Tang, 2023 BCCA 221, the BC Court of Appeal was given the opportunity to clarify this apparent conflict. The dispute in this case arose between the children of a deceased will-maker. For several years prior to her death, the will-maker’s will provided equally to her five adult children. This all changed seven days before her death when the will-maker changed her long-standing will to instead provide two of her children, who lived with her and acted as her primary caregivers during the last three years of her life, approximately 85% of her estate, leaving each of her remaining three children only 5% (the “Will”). The latter three children commenced proceedings under s.60 of WESA to vary their mother’s Will.[4]
Trial Decision
At trial, Mr. Justice Edelmann concluded that the Will should be varied.
Among the evidence at trial was a letter written by the will-maker approximately one year prior to her death which explained that she wanted to favour two of her children because of the care and comfort they had given her.
The three substantially disinherited children conceded that their siblings should receive preferential treatment in their mother’s will, but disputed the magnitude of that preference, arguing that, in its amended form, the Will did not make adequate provision for them.
Court of Appeal
On appeal, the two children who initially inherited more favourably under the Will took the position that Justice Edelmann erred in law by failing to recognize that mere unequal treatment of children is not a basis for varying a will. In relevant part, they argued that their mother left “valid” and “rational” reasons for her act of disinheritance (in the form of the letter) and, therefore, the Will should not have been disturbed. In support of this position, the appellant siblings pointed to, among other authorities, Hall, Bell, and Kelly, described above.
In response, the respondent children argued, in part, that the analytical framework developed in Hall and Kelly is inconsistent with Tataryn, as the framework improperly insulated the will-maker’s subjective beliefs and values from the objective standard of a reasonable will-maker.
Conclusion
As a starting point, Madam Justice Fenlon, writing for a unanimous Court of Appeal, agreed that the authorities appeared, on their face, to be in conflict. However, she went on to conclude that, when read carefully, with regard to their own factual context, each of the seemingly inconsistent decisions could be reconciled with Tataryn.
Following a detailed review of the facts and reasoning in each of Hall, Bell, and Kelly, the Court held that the cases do not stand for the proposition that a will-maker’s subjective reasons for their unequal treatment of adult children must be deferred to, so long as their subjective reasons for that distribution are “valid” and “rational”. Instead, the Court found that the cases recognized and affirmed that a will-maker’s reasons are still subject to the objective testator test set out in Tataryn.
With this standard in mind, the Court of Appeal agreed that the mother’s Will should be varied, reasoning that, while two of her children provided her with more care and support during the last three years of her life, this was not a case in which the remaining three children were disinherited as a result of estrangement or misconduct. Each of the will-maker’s five children were dutiful and loving to their mother, calling into question the magnitude of the will-maker’s unequal treatment of her children.
Ultimately, the Court of Appeal held that the will-maker’s decision to gift two of her children 85% of her estate while leaving the remaining 15% to be divided amongst her other three children fell below the standard of a judicious parent.
The Court varied the Will to provide 60% of the estate to the two children the testator intended to favour (30% each), in recognition of her wishes, and 40% be split amongst the remaining three children (approximately 13.3% each).
Takeaways
Unlike other decisions by our Court of Appeal, Tom v. Tang is, in a sense, an important decision for how little it changed the law. At its core, the case served only to confirm the central holding in Tataryn from over 30 years ago: that a will-maker’s subjective beliefs and values, even those which are “valid” and “rational”, cannot alone justify an act of disinheritance. The moral obligations of a will-maker remain subject to the objective standard of a reasonable will-maker, an analysis which necessitates a consideration of, among other things, what a judicious parent would do in the circumstances, as informed by the reasonable expectations of society and contemporary community standards.
The practical implications of this decision are evident. Consider for instance a will-maker who disinherits their independent adult child due to a relationship breakdown stemming from a personal disagreement with a child’s sexual orientation. These beliefs, however archaic and objectionable, may be “valid”, as the relationship breakdown did occur in fact, and “rational”, in the sense they are logically connected to act of disinheritance.
When read on their face, decisions like Hall, Bell, and Kelly appeared to support the contention that an unequal will supported by such reasons should be shielded from variation. Tom v. Tang confirms that this position is incorrect. In these circumstances, a will-maker’s reasons, however “valid” and “rational”, may still fail to satisfy the objective standard of a judicious parent, as mandated by Tataryn.
If you have any questions relating to the article, please contact Matthew Nakatsu or a member of our Wills, Estates, and Trusts Group.
[1] Tataryn
[2] Tataryn
[3] See also Bell v. Roy Estate (1993), 75 B.C.L.R (2d) 213, 1993 CanLII 1262 (C.A.) [Bell]
[4] One child also brought a claim for unjust enrichment, which was ultimately dismissed at trial.
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