Can a testator discharge his moral obligation to his adult daughter by benefiting her sons at her expense? In the circumstances in Scurek v. Scurek, 2020 BCSC 450, a recent BC wills variation claim, the court said no. Grandchildren do not have moral claims under BC wills variation law, nor do grandchildren have a legal obligation to support their own parent.
Last Will and Testament in Scurek
Joseph and Stanislava Scurek had two children: Peter (currently aged 60) and Lydia (currently aged 58). Stanislava died March 5, 2013 at the age of 76. Her estate passed to her husband Joseph upon her death. Joseph died February 9, 2017 at the age of 85. Joseph’s Last Will and Testament provided that 50% of the residue of the estate was to go to his son Peter, and the remaining 50% was to be divided into three equal shares, one for each of Lydia, John Jr., and James. Therefore, Lydia and her sons would receive 1/6th each.
Daughter’s successful wills variation claim
After Joseph’s death, Lydia brought a wills variation claim, taking the position that her father’s Will failed to discharge his moral obligation to her. Peter’s position was that the Will reflected a sort of equality between Peter and Lydia, in that if the shares given to the two grandsons are thought of as falling within Lydia’s share, then her share is equal to Peter’s. A related argument raised by Peter was that the Will reflected a concern that Lydia would waste her share, leaving the grandsons with no benefit. Justice Verhoeven rejected both of Peter’s arguments. It was essentially speculative that Joseph and Stanislava were concerned that Lydia would not manage the inheritance wisely, and moreover, Justice Verhoeven concluded that splitting Lydia’s half share of the estate among her and her two sons failed to discharge the father’s moral duty to provide for his daughter.
Analysis on a BC wills variation claim
On a wills variation claim, the court must determine whether the testator has made “adequate provision” for his spouse and children. In the first stage, the court should consider the circumstances existing and reasonably foreseeable as of the date of death of the testator, that being the last chance that the testator had to make a proper will. If the court decides the testator has not made adequate provision for the proper maintenance and support of a spouse or child, then, in the second stage, the court determines the provision that the court thinks adequate, just and equitable in the circumstances.
Competing claims and other beneficiaries at the heart of this wills variation claim
There is a list of considerations for the court to consider when evaluating the existence and strength of a testator’s moral duty to independent children, and the list includes competing claimants and other beneficiaries (see here for an earlier post from our BC estate litigation team setting out the list of considerations). In Justice Verhoeven’s view, that consideration was at the heart of this wills variation claim. It was apparent that Joseph wanted to benefit his grandsons. However, grandchildren have no moral claims under BC’s wills variation legislation (the Wills, Estates and Succession Act). Joseph’s primary moral duty was to his children, Lydia and Peter. A will-maker cannot discharge his moral obligation to his child by benefiting her children at her expense. The plain fact is that under the Will, Peter receives one-half of the estate, and Lydia one-sixth. The fact that one-third of the estate is allocated to Lydia’s sons is of no material benefit to her. They are not obliged to support her, and they can be expected to prioritize their own needs. The grandsons were and are both independent, healthy young adults, gainfully employed and capable of earning an income.
Comparing the circumstances of the beneficiaries in Scurek
Comparing the relative positions of the testator’s children, Lydia had no significant assets. She was disabled, unemployable, and essentially destitute, barely able to meet her day-to-day expenses. There was no prospect her situation would improve except through what she would receive from Joseph’s estate. When the Will was made, and when Joseph died, Joseph ought to have recognized that Lydia was impecunious with little or no prospect of improving her financial situation. He ought to have recognized that a 1/6th share of the estate could not conceivably be sufficient to provide the substantial financial support that Lydia would need.
Peter was also unable to work due to disability, but Peter owned real estate and investments with a value of $3,312,666. Joseph should have recognized that Peter was financially secure, even without an inheritance. Joseph also should have recognized that Peter would receive substantial property (nearly $1 million) outside the estate. There is no evidence that this was considered when Joseph prepared his Will. If, as Peter argued, the Will reflected a kind of notional equality between Lydia and Peter, then the property passing outside of the estate must have been ignored, or otherwise the shares would have been different.
Variation of the Will to satisfy moral obligation
Lydia had a strong moral claim. At the time of Joseph’s death she was (and she remained) in dire need of support, and could be expected to remain in need for the rest of her life. Peter was not in need at all. There was no sensible, rational justification for providing Lydia with such a small portion of the estate. In Justice Verhoeven’s view, bearing in mind the benefits Peter received outside his father’ estate, the appropriate allocation of the estate assets that recognizes, as far as possible, the testator’s apparent wish to benefit Peter, as well as the grandsons, was to divide the estate as follows: Lydia 3/6th, Peter 2/6th, and 1/12th to each of the grandsons. The value of the estate the time of trial was $1,626,125.36. Had the will not be varied, Lydia would have received a 1/6th share, valued at $271,020. Under the allocation as ordered on the wills variation claim, Lydia received $813,060. John Jr. and James received $135,510 each, and Peter received $542,040, which when added together with the $959,188 he received outside the estate, totals $1,501,228.
Bottom line on moral obligations in BC wills variation claims
A testator’s primary moral obligation is to his spouse and children. A testator cannot discharge his moral obligation to his adult independent child by benefiting grandchildren at the child’s expense.