Tag: Wills Variation Act
A recent Globe and Mail Article, published on June 4, 2021, suggests that the booming real estate market in Vancouver has come with a rise in family legal disputes.
A Vancouver estate dispute arose in November of 2020 when a testator (with modest assets at the time), who had bequeathed the remaining assets of her estate to the British Columbia Society for the Prevention of Cruelty to Animals, passed away. When the will was prepared in 2003, the testator never contemplated that the value of her estate would increase so dramatically as a result of a rise in the real estate market. The testator’s remaining assets, left to charity, amounted to more than $1.5 million on her death. It is safe to say that the testator’s heirs were not pleased with this outcome.
A poorly drafted will that fails to consider the volatile real estate market could result in unhappy heirs/beneficiaries and leave an estate vulnerable to litigation. It is also important for testators who reside in British Columbia in particular, to consider the Wills Variation section of their legislation when drafting a will. If a testator has multiple children and chooses to gift one child real property, and that real property increases in value, the remaining children could argue that they were treated unfairly and have a claim against the estate. As litigation lawyer, Josh Woods, states, “… we are not talking about a $100,000.00 lake cabin … we are talking about properties … all of which are skyrocketing in value.”
In order to best protect against estate litigation, it would be prudent to retain an estates lawyer to prepare your will.
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Ian Hull and Tori Joseph
A recent decision of the Supreme Court of British Columbia examined the tension between a testator’s moral obligation, if any, to provide for a child under a will, and that testator’s freedom to dispose of his or her estate as that testator sees fit.
The facts in Grewal v Litt are relatively simple and were generally not in dispute between the parties. The applicants were the four daughters of the two testators whose wills were under scrutiny. The respondents were the testators’ two sons. The testators had died leaving mirror wills, each benefitting one another. Upon the death of the survivor, the wills left modest bequests of cash to each of the daughters, while the two brothers shared the residue.
The combined values of the estates exceeded $9 million. Pursuant to the terms of the wills, each daughter was to receive a bequest of $150,000, or about 1.5% of the total value of the two estates. The two brothers were the sole residuary beneficiaries and stood to split the remaining 94%.
The daughters brought an application to vary the wills under section 60 of British Columbia’s Wills, Estates and Succession Act (the “WESA”) to provide an equal distribution of the residue between all six children. The application was brought on the basis that the testators had purportedly discriminated against the applicant daughters based on their adherence to traditional cultural values. The respondent brothers agreed that the terms of the wills did not fulfill the testators’ moral obligations to the daughters, but did not agree that the solution was an equal distribution of the residue.
The court grappled with the tension between the need to make proper provision for the daughters versus recognizing the testators’ broad testamentary freedom to dispose of their estate as they see fit. Ultimately, the court found substantially in favour of the daughters and held that each daughter would be entitled to a 15% share in the residue, with the respondent brothers each receiving a 20% share.
In reaching that decision, the court first looked at section 60 of the WESA and noted that the value of the estates was large enough that the court could both consider the parents’ testamentary autonomy in favouring the respondent brothers while nonetheless making adequate provision for the applicant daughters.
The application judge then referred to numerous prior decisions in which the court had ordered variations of wills when unequal testamentary distributions were made by testators who believed themselves to be bound by cultural norms. Finally, the judge noted that the significant contributions by the daughters to the testators during the last few years of their lives, which were not replicated by the brothers, enhanced the testators’ moral obligation to provide for the daughters.
This case’s potential impact in Ontario remains to be seen, although it is important to the note that Ontario lacks a statute with as broad a mandate for varying testamentary documents as the WESA. Part V Ontario’s Succession Law Reform Act is a comparable parallel that allows a court to make adequate provision for a testator’s dependants, but that language is less broad than the language of the WESA. In any event, the Court of Appeal for Ontario held in Spence v BMO Trust Company that absent any requirement by a testator to adequately provide for a dependant, the testator has broad testamentary freedom.
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