In the recently reported case of Tom v. Tang, 2023 BCCA 221 (CanLII) released on June 2, 2023, the BC Court of Appeal went a long way in varying a will.
The reported Summary of the case states in part: The testator left a will in which she gave 85% of her estate to two of her children, as recognition for the care they provided her in the last three years of her life. The testator’s three other children were each given 5% of the estate. The appellants appeal and say the jurisprudence of this court requires that the testator’s wishes be respected, as she had valid and rational reasons for the distribution she made.
Held: Appeal allowed in part. The cases relied on by the appellants do not stand for the principle that a testator’s unequal treatment of adult children must be deferred to if the reasons given for the unequal distribution are valid and rational. Those cases, read in context, recognize that a testator’s moral duty to adult children must be assessed using the objective standard of the reasonable testator, and provide that the moral duty may be negated where there is just cause. Here, the testator did not meet the objective standard of a judicious parent, given that each child had a significant moral claim arising from their contributions to the family economy.
The result was that two of the children had their combined share reduced from 85% to 60% and the three applicants had their combined share increased from 15% to 40% on an estate valued at approximately $2.3 million.
In British Columbia, the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] s. 60 provides:
Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
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