The British Columbia Supreme Court recently decided a case regarding the moral obligations owed by a testator to their child. In Bautista v Gutkowski Estate, [2023] BCJ No 1681, 2023 BCSC 1485, [2023] BCJ No 1681 the deceased, Pacita Gutkowski had a child, Nicolas Bautista, the plaintiff, who she left with her parents in the Philippines when she moved to Canada for work in the mid 1970’s. They met again when he was 7, and would meet every 3 to 4 years after that. Pacita provided financial assistance for Nicolas and contributed to his living expenses until his second year of college when she informed him of her difficult financial situation, although he had also had to get a part time job during high school to help pay for his expenses. When Pacita died she left her son 25% of her $900,000.00 estate, with the other 75% going to her sister and niece, the defendants.
Nicolas alleged that his cousin and aunt drove a wedge between him and his mother, and failed to provide him with information about his mother’s deteriorating health in the hope that he would not benefit from his mother’s estate. Nicolas therefore applied to the Court for a variation of his mother’s will under s. 60 of the British Columbia Wills, Estates and Succession Act. The wording of s. 60 is as follows: “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 that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”
Ontario has a similar provision, found in s. 58(1) of the Succession Law Reform Act, which states that: “Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.”
While s. 60 of the Wills, Estates and Succession Act and s. 58(1) of the Succession Law Reform Act share many similarities, it is important to note that the Wills, Estates and Succession Act gives the Court greater powers and discretion. For instance, s. 60 applies “despite any law or enactment to the contrary”, which is language that is missing from s. 58(1). Additionally, s. 60, unlike s. 58(1) makes specific reference to the Court’s opinion, discusses maintenance and support, rather than just support, and says that the provision made to the dependent should be “adequate, just and equitable” rather than just “adequate”, which is the language included in s. 58(1).
When coming to its decision to grant the variation, the Court in this case took note of the fact that Pacita had “abandoned” Nicolas as a three-month old baby, had failed to move him to Canada to be with her once she was financially able to do so, chose to be estranged from him later in life despite his attempts to build a relationship, and that the misconduct alleged by the aunt and cousin constituted hearsay. The Court noted that Pacita had acknowledged her moral obligation to her son in providing him with a 25% share in her estate.
The Court, relying on the Supreme Court of Canada case Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, 1994 CanLII 51, commented that s. 60 of the British Columbia Wills, Estates and Succession Act has two main objectives: to ensure the adequate, just, and equitable provision for spouses and children of a testator; and to protect the testator’s autonomy. Of those two objectives, the first takes precedence, and the question of whether a testator has made adequate provision is an objective one to be assessed in the context of the current societal, legal, and moral norms.
As such, the Court varied Pacita’s Will to provide Nicolas with 60% of the estate, with the aunt and cousin each receiving 20% rather than their previously combined 75%.