Family, Estates & Trusts 



Legal and Moral Obligations on a Wills Variation Claim

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, [1994] 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, [1998] B.C.J. No. 2960 (C.A.) to show the basics in action.

Legal obligations are the minimum acceptable level

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.

Legal obligations to surviving spouse

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.

Legal obligation to children

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

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.

Priority of claims

  • Legal obligations owed by the will-maker take priority over moral obligations.
  • The claims of the surviving spouse and dependent children take priority over those of adult independent children or other claimants.
  • Some moral obligations are stronger than others. The court must examine all of the facts and weigh the strength of each claim. As noted above, where the size of the estate permits the will should address the moral obligations toward all beneficiaries.

Range of “adequate, just and equitable” outcomes

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:

  • Who has a legal claim? As none of Stephen’s children were dependent on him, Isabel had the only legal claim.
  • Did any assets pass outside of the will? Stephen and Isabel were jointly named as owners of a term deposit valued at $43,000. Because of what is known as the “right of survivorship”, when he died, she became the sole owner of the term deposit. Though ownership of his share of the joint account passed to her outside of his will, the court considered it when deciding that adequate, just and equitable provision had been made for her.
  • How long was the marriage? The Glanvilles had a long marriage. They had been together for 26 years when Stephen died. Under the Divorce Act and family property legislation, Isabel would have been entitled to equal division of family assets if marriage breakdown occurred during Stephen’s lifetime. There was no reason to depart from equal division in this case. The court found that the savings account and the value of the life estate amounted to approximately equal division. Note that in some cases, a life estate for a surviving long-term spouse may not be adequate <>.
  • What were the contributions of each spouse or child to the estate? Financial contributions to building the estate as well as unpaid labour and other such contributions must be considered. Over the course of their relationship, Isabel did not make financial contributions, but she did make significant contributions of unpaid labour around the home. There was no evidence that Stephen’s children contributed to the estate, financially or otherwise.
  • While alive, did the will-maker make promises to beneficiaries? Stephen promised his biological children that they would inherit the family home when he died.

The bottom line on legal and moral obligations on a wills variation claim

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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