On a wills variation claim, the court’s decision as to whether a will makes “adequate, just and equitable” provision for a claimant requires consideration of both the legal and moral obligations owed by the will-maker to the claimant and any other beneficiaries: Tataryn v. Tataryn Estate,  2 S.C.R. 807.
This post provides an overview of the basics relating to a will-maker’s legal and moral obligations, followed by a case analysis of Glanville v. Glanville,  B.C.J. No. 2960 (C.A.) to show the basics in action.
Legal obligations are the obligations that the law would impose on a person during his or her lifetime if the question of provision for the claimant were to arise. Legal obligations are found in the Divorce Act, family property legislation, and the law of constructive trusts. The Court of Appeal in Glanville v. Glanville stated that a will-maker’s legal obligations define the minimum acceptable level of what is adequate, just and equitable provision in a will.
On a wills variation claim, the starting point in assessing the adequacy of a will’s provision for a surviving spouse is the determination of spousal support and the share of the family assets the surviving spouse would have received on a marriage breakdown. The law presumes equal division of family property on divorce, but the court can depart from an equal division if such a division would be unfair. The same analysis applies when considering legal obligations to a spouse on a wills variation application.
A will-maker has a legal obligation to provide in his or her will for any dependent children. The legal obligation to provide for dependent children during one’s lifetime informs the analysis of the legal obligation to provide for such children in a will.
In general, there is no legal obligation to make provision in a will for independent adult children. That being said, in some cases, there may be a legal obligation toward an independent adult child by reason of that child’s contribution to the will-maker’s estate.
Moral obligations are found in society’s reasonable expectations of what a person would do in the circumstances, by reference to contemporary standards. It is a matter of balancing conflicting claims, such as claims of adult independent children and a surviving spouse. Where the size of the estate permits, the will should address the moral obligations toward all beneficiaries.
If the will-maker has provided for his or her spouse and children within the range of what is considered “adequate, just and equitable”, the will should not be disturbed. The court will only intervene to vary a will if what is provided falls below the range of what is adequate, just and equitable.
Case analysis: Facts a court may consider on a wills variation claim
The Glanville case provides insight into the facts a court may consider when examining legal and moral obligations on a wills variation claim. Stephen and Isabel Glanville were married for 26 years when Stephen died at the age of 78. They did not have any children together, but each had three adult independent children from their first marriages. At the time of Stephen’s death, he owned a home valued at $215,000. His only other major asset was a $137,400 savings account. Stephen’s 1993 will left all personal assets to Isabel, and a life interest in the home. A life interest means that Isabel does not own the home – she can live in the home, but when she dies, the home goes to his three biological children. Stephen’s will stated that Isabel had to pay all costs of maintaining the home including taxes, insurance and repairs. Isabel applied to the court for a variation of the will. The court varied the will but only to make it so that Stephen’s children had to pay all taxes, insurance and repair costs on the home out of their remainder interest. All other bequests in the will stayed the same.
Here are some of the key facts the court considered in Glanville:
This post was designed to provide an overview of the basics relating to a will-maker’s legal and moral obligations. Whether a will meets the legal and moral obligations – in other words, whether provisions in a will fall within the range of adequate, just and equitable outcomes – requires a careful analysis of the facts in each case.
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