Tag: moral obligation
In British Columbia (“BC”), there is a process known as wills variation, whereby a spouse or child of a testator can challenge the distribution set out in the will upon the death of the testator. In these will variation cases, the Court must balance the autonomy of the testator – to decide how to distribute his/her estate – with certain moral obligations that might be present. The BC legislation that allows for this equitable claim is unique.
The BC Supreme Court’s decision in the 2015 Kong v Kong (“Kong”) case confirmed that, although difficult given the ability to bring a wills variation claim, it is possible to disinherit your children in BC. Mr. Kong was survived by seven children, all of whom were adults, at the time of his death. Mr. Kong’s Will provided for the overwhelming majority of his estate to be left to his youngest son, thus disinheriting his remaining children. Four of Mr. Kong’s disinherited children initiated a wills variation claim in an effort to vary the Will in their favour. In order for the Court to consider variation, it must determine whether the reasons for an adult child’s disentitlement meet the criteria of “valid and rational.” The onus lies on those challenging a will to establish that there were no valid or rational reasons to justify the testator’s decision.
In BC, a testator’s moral obligation to his/her children does not necessarily require the testator to provide for an adult child where there has been estrangement, misconduct, or sufficient provision to the child in the testator’s lifetime. Satisfying one’s moral obligation does not require an equal distribution to all surviving children. In the Kong decision, Justice Sharma found inconsistent claims regarding the nature of the relationship between Mr. Kong and his children who brought the variation claim. Justice Sharma held that some of the disinherited children had been estranged from their father prior to his death. On an evidentiary note, Justice Sharma refused to limit the Court’s analysis solely to discussions between Mr. Kong and his lawyer when the Will was prepared. Instead, the Court engaged in an objective investigation into the relationship between each of the Kong children and their father. Upon reviewing the reasons found for the estrangement, Justice Sharma concluded that Mr. Kong had no moral obligation to provide for the children who had been estranged (and were at fault for this estrangement). As such, Justice Sharma upheld the father’s decision to disinherit two out of the four applicants. A five percent share of the estate was awarded to the remaining applicants.
The Kong case demonstrates that, even where a variation is justified, the Court will still give strong deference to the testator’s intentions as expressed in his/her will.
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Suzana Popovic-Montag & Tori Joseph
The Succession Law Reform Act permits dependant support claims to be brought by a spouse, sibling, child and parent of a deceased. In order to qualify as a “dependant”, the person must be someone that the deceased (i) was providing support to immediately before death, or (ii) was under a legal obligation to support immediately before death.
Interestingly, the definition of “child” is not limited to minor children or financially dependant children. It is thus open to an independent adult child to whom no financial support was being paid immediately prior to death to apply for dependant support, premised on the argument that the deceased parent has a moral obligation to provide support. While we have seen the development and application of the moral obligation principle in Tataryn v. Tataryn Estate and Cummings v. Cummings, and although some decisions of the bench in British Columbia indicate that it is willing to apply the moral obligation principle in favour of independent adult children, in Ontario moral obligation appears to continue to be treated as but one factor to consider in the context of support claims. The fact remains that there is no legal obligation to provide support to an adult child.
A similar view may persist in the British court, which was recently reported to have disallowed an adult son’s plea for his wealthy parents to continue to financially support him, which litigation was brought after his parents significantly reduced their financial involvement. While in this instance the parents were alive and able to successfully respond to the court proceeding, had they died prior to or during the time when financial support was in the process of being reduced, would the adult son have had more success with such a claim? If his parents died subsequent to support being reduced or eliminated, would their estates still be vulnerable to a dependant support claim on moral grounds?
Although each case is fact-specific, I would not be surprised to see that in circumstances where there is a large estate and no other competing support claims, the court may work harder to striking a balance between fairness and testamentary intention, particularly where the parents are shown to have enabled a lifestyle and arguably created a dependency that they withdrew during adulthood.
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