Two of three children sought variation of their late mother’s will in McBride v. Voth, 2010 BCSC 443, arguing that their mother failed to make adequate provision for them. Unlike most BC wills variation claims, there was no history of maltreatment by the will-maker or by any of her children, or of any estrangement among them. Quite the contrary, the McBride children each enjoyed a loving and close relationship with their mother and were themselves lifelong friends until the estate litigation arose. The McBride case is remarkable because of those facts, but also because the Court’s decision comments on the growing trend in BC case law in favour of rejecting objectively insufficient reasons for disinheritance on the basis that they are simply not rational, even if they are logically connected to the disinheritance.
Doctrine of valid and rational reasons for disinheritance
Tension has arisen when it comes to consideration of the will-maker’s reasons for disinheriting a family member on a BC wills variation action. We recently discussed the inconsistency between the doctrine of valid and rational reasons established by the BC Court of Appeal in Bell and Kelly and the overarching principles of wills variation law set out by the Supreme Court of Canada in Tataryn v. Tataryn Estate. Put succinctly:
- The doctrine of valid and rational reasons does not require that the reason expressed by the will-maker in his or her will, or elsewhere, for disinheriting the claimant be justifiable. It is sufficient if there were valid and rational reasons at the time of his or her death – valid in the sense of being based on fact; rational in the sense that there is a logical connection between the reasons and the act of disinheritance.
- Tataryn, on the other hand, requires assessment of the will-maker’s reasons from the objective standpoint of what a judicious parent would do in the circumstances, by reference to contemporary community standards.
In the McBride decision, Madam Justice Ballance observed that the doctrine of valid and rational reasons was difficult to reconcile with the fundamental principle of Tataryn that a will-maker’s moral duty must be assessed objectively from a standpoint of what a judicious parent would do in the circumstances, by reference to contemporary community standards. How can reasons for disinheritance negate a will-maker’s moral obligations if those reasons are not justifiable? Madam Justice Ballance noted that while Bell and Kelly are still the governing authorities on the doctrine of valid and rational reasons in BC, there seems to be a growing trend in the cases decided after Kelly to favour rejection of objectively insufficient reasons on the pretence that they are simply not rational.
Basis of the McBride BC wills variation action
Jennifer and Daniel (the two youngest McBride children) succeeded in their claim for variation of their mother’s will on the basis that their older sister Margot (age 58 at trial) was substantially overprovided for under the will in a manner tantamount to their disinheritance. Mrs. McBride’s will provided for Margot to remain in the family home for her lifetime in appreciation of the care Margot had provided to her mother in the years before her death. The residue of Mrs. McBride’s estate was to be divided equally among the other two children. Jennifer and Daniel were unpleasantly surprised when they learned of the house trust in favour of Margot. Their mother’s estate was worth $605,000, of which $540,000 was attributable to her house. Margot intended to remain in the home as long as physically able. Jennifer and Daniel contended that, despite the extremely close relationship between Margot and Mrs. McBride, Margot had been substantially overprovided for under the will, and they suffered a concomitant diminution of their just share, in breach of the moral duty owed to them by their mother. The court agreed that the house trust, if permitted to stand, would amount to a disinheritance.
Consideration of reasons for disinheritance in McBride
In a draft of Mrs. McBride’s will, the paragraph establishing the house trust read as follows: “This gift to Margot is made in appreciation for her taking care of me in my house during my later years.” It was asserted at trial that the statement ought to be construed as providing a valid and rational reason for the subordinate testamentary treatment of Jennifer and Daniel. Madam Justice Ballance rejected that assertion, finding that it did not negate Mrs. McBride’s moral duty to Jennifer and Daniel. In its search for contemporary justice, the Court had in mind the larger picture as it affects the wills variation claimants – that is, whether adequate and just testamentary provision had been made for them in light of the imposition of the house trust, Margot’s stated intention to live in the McBride home indefinitely, Margot’s life expectancy, and the closeness in age of the McBride children.
Delayed inheritance amounted to disinheritance on the facts
The Court was not persuaded that Mrs. McBride necessarily turned her mind to the potential ramifications to Jennifer and Daniel of the provisions of the house trust, and specifically the effect on them of Margot’s election to live in the McBride home indefinitely and possibly until her death. The postponement of any distribution to Jennifer and Daniel for such a potentially significant period, and the vagaries of life that would ultimately have a bearing on whether they would be alive to receive their respective shares of the net proceeds, loomed large in determining whether adequate provision had been made. In this case, a greatly delayed inheritance by adult independent children was the near equivalent of an inheritance denied. Given the asset composition of Mrs. McBride’s estate, the future remainder interest under the house trust represented an option of distribution that fell below the moral obligation of a contemporary judicious parent in all the circumstances.
Wills variation in McBride
The Court varied Mrs. McBride’s will only to the extent required to provide the justice to Jennifer and Daniel that the will failed to achieve, commensurate with Mrs. McBride’s moral obligations to her children. In Madam Justice Ballance’s opinion, Mrs. McBride did not owe an equal moral duty to all three children. Margot’s contributions to the household and her mother’s well-being and physical care intensified the moral duty to her. Her strongest duty was to Margot, followed by Jennifer largely because of Jennifer’s pronounced financial need, and next to Daniel. In the Court’s view, a relatively short fixed-term provision in the will permitting Margot to remain in the McBride home for three years after Mrs. McBride’s death would have been appropriate, even though it would have postponed distribution of the sale proceeds to Jennifer and Daniel. Mrs. McBride’s will was thus varied to provide that, upon the third anniversary of her death, the McBride home be sold as soon as is reasonably practicable, with the net sale proceeds of the home to be distributed as follows: 45% to Margot; 30% to Jennifer; and 25% to Daniel.
Take home point on trend in BC wills variation
In some cases, a will-maker’s ascertainable reasons may have the effect of negating any moral obligation owed by the will-maker. However, the growing trend in BC case law is in favour of rejecting objectively insufficient reasons for disinheritance on the basis that they are not rational, even if they are logically connected to the disinheritance.