Background Facts
In this case, the will-maker (“Mrs. Law”) died leaving two adult children: the plaintiff daughter (“Ginny”) and the defendant son (“William”). Mrs. Law’s last Will (the “2018 Will”) confirmed the true joint tenancy of the family home with William and provided for the equal distribution of the primary estate asset between Ginny and William.
Prior to making the 2018 Will, Mrs. Law made two earlier wills (each of which was revoked by the will subsequent):
- In 1999, Mrs. Law made a mirroring will (the “1999 Will”) with her husband, which provided their estates to each other with a gift over equally between Ginny and William. At this time, the family wealth consisted of the family home, three rental properties, and savings and investment accounts. Mrs. Law’s husband died shortly after the 1999 Will was made and Mrs. Law inherited all of the family wealth.
- In 2004, Mrs. Law made a Will which “effectively disinherit[ed] Ginny…except for [a] gift of $2,000”[4] and gave the remainder of Mrs. Law’s estate to William.
Between 1999 and 2018, Mrs. Law gave the majority of her assets to William by way of various inter-vivos gifts (including a gift of at least half of the net sale proceeds of two rental properties), beneficiary designations, and placing the family home and her personal bank accounts into joint tenancy with William.
The Court found that, after divesting herself of the majority of her assets, Mrs. Law made the 2018 Will to protect William from being sued by Ginny.
Despite the notional equality in the 2018 Will, the Court found that “it [was] clear that William received much, much more of his mother’s assets.”[5] Specifically, the Court found that William received approximately $2.2 million (being over 78% of the family wealth) from Mrs. Law throughout Mrs. Law’s lifetime and under the 2018 Will. In contrast, Ginny received just over $600,000 (being just under 22%).
The Court further found that although both Ginny and William were loyal and dedicated children to their mother, “Ginny took on more of the time and effort for her mother’s medical care than her brother or anyone else”.[6]
Variation
After Mrs. Law’s death, Ginny sought a variation of the 2018 Will pursuant to section 60 of the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”).
Section 60 of WESA allows a child or spouse of a will-maker to seek a variation of a will that does not “make adequate provision for the proper maintenance and support” of that child or spouse. Where a variation is granted, the Court will order “the provision that it thinks adequate, just and equitable in the circumstances”.
The Court held that in determining whether “adequate, just and equitable” provision has been made, the Court must search “for contemporary justice”, meaning that:
[159] [T]he Court’s analysis is to be guided by contemporary standards, such that what was thought to be adequate, just and equitable at one juncture in time, may be quite different from what is considered to be just and equitable in contemporary terms.
The Court also noted the importance of testamentary autonomy and relied on the Supreme Court of Canada decision of Tataryn v. Tataryn Estate[7] for the principle that “testamentary autonomy must yield to what is adequate, just and equitable.”[8]
Ultimately, the Court found that Mrs. Law’s distribution of her estate (both in her lifetime and under the 2018 Will) was made based on her view that sons deserved more than daughters, and this view fell below contemporary standards and necessitated a variation of the 2018 Will:
[165] I am persuaded on the whole of the evidence, that the 2018 Will must be varied to address the gender-based bias subsumed within the deceased’s distribution of her assets and estate. Contemporary justice does not countenance preferential treatment towards certain children over others based on their gender.”
…
[199] I have found that Ginny and William’s mother held a gender-based bias that resulted in William receiving most of his mother’s assets. This bias influenced and shaped the disposition of the mother’s assets, not only through the gifts she gave Ginny and William during her lifetime, but was also reflected in her 2018 Will. While perhaps a common view and standard in ages past, such inequitable treatment is not aligned with contemporary societal standards.
In result, the Court ordered that the 2018 Will be varied such that Ginny receive 85% of the primary estate asset and William receive 15%.
If you have any questions about British Columbia’s wills variation legislation, a member of our Wills, Estates + Trusts team would be happy to assist you.
[1] 2024 BCSC 1561.
[2] at para. 163.
[3] at para. 51.
[4] at para. 166.
[5] at para. 197.
[6] at para. 36.
[7] 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807.
[8] at para. 165.
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