In this case, the testator left a significant portion of his estate to someone outside the family. Mr. John Nightingale was a widower with one child, a son named Keith. John’s will left 55% of his estate to Keith, 5% to Keith’s children, and 40% to a long-standing friend, Dianne Hepting. John’s wife passed away in the early 1960s and in 1976 he met Dianne through an organization for single parents. They initially dated, but ultimately maintained a friendship rather than a romantic relationship. They remained in close contact and took some vacations together over the years. Dianne helped John over the years, including providing transportation to him when he could no longer drive. John did not have many friends or acquaintances. Keith’s wife suffered from rheumatoid arthritis and fibromyalgia, while one of their two sons was disabled.
In 2006, when Keith learned that John intended to leave Dianne 40% of the estate, he challenged his father’s inclusion of the father’s condominium in the estate. In Nightingale v. Hepting, 2010 BCSC 1214, Keith maintained that he and his father had discussed the condominium passing to the benefit of his disabled son. Keith told his father’s notary that John intended to transfer the condominium to a joint tenancy with Keith. The notary consulted with John, who was living in a hospice by this time, and then instructed his secretary to prepare the necessary documents. The notary’s associate visited John with the prepared documents, but John said that he was not feeling well and was not yet settled in his intention. When the notary visited the hospice 3 days later, John had died.
Keith sought to have the will varied under s. 2 of the Wills Variation Act. He argued that John made inadequate provision in light of his moral obligation to benefit his only son, considering Keith’s commitment to provide for his own disabled son. He argued that the bequest of 40% of the estate to Dianne was excessive. The trial judge considered the applicable case law, noting that no two cases are very much alike. The judge considered it significant that John had told the notary’s associate that his mind was not settled on the matter, and noted that it would be conjecture to find that John ultimately would have changed the will. The relevant analysis for varying a will is whether the provisions of the will as it is meet the obligations imposed by s. 2, and fall within the range of adequate dispositions. The judge found that several other assets passed from John to Keith outside of the estate, including survivor benefits to an RIF, the cash-in value of a number of Canada Savings Bonds, and a bank account. Including these, Keith received 67% of John’s net worth. Overall, John’s bequest to Keith was a significant one. His bequest to Dianne, while also significant, was reasonable given their long and supportive relationship. The judge concluded that John was aware of his moral obligation to Keith and of the fact that the obligation was heightened by Keith’s responsibilities to his disabled son. However, the will was within the range of dispositions deemed to be adequate under the Wills Variation Act.
A parent can leave a significant portion of their estate to someone other than their children, and still fulfill their moral obligation to the children.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at