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Wills Variation

Tataryn: BC’s Leading Case on Wills Variation Act

Testator’s legal and moral duties inform will variation

Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 is the leading case on British Columbia’s Wills Variation Act, which was replaced by the Wills, Estates and Succession Act.

This legislation gives courts broad discretion to determine whether the testator has made “adequate provision” for their spouse and children. If they have not, the court can order the will varied to reflect what it considers adequate, just, and equitable in the circumstances.

The background

In this case, Mr. and Mrs. Tataryn were married for 43 years, and the estate they had created together was in Mr. Tataryn’s name at the time of his death. The estate consisted of the house they lived in, a rental property inherited from Mr. Tatryn’s father, and their bank accounts. The couple had two sons, John and Edward. Mr. Tataryn disliked John to the point that not only did he leave him out of the will, he structured the will in such a way that Mrs. Tataryn would not be able to give any of the estate to John. He created a life estate for his wife in the matrimonial home, and made her the beneficiary of a discretionary trust, with as trustee. The will stipulated that after Mrs. Tataryn’s death, everything would go to Edward.

Will variation?

Mrs. Tataryn and John sought to have the will varied. At the trial level, the judge ordered that Mrs. Tataryn should also have a life estate in the rental property, that Edward and John should receive immediate gifts of $10,000 each out of the residue of the estate, and that upon Mrs. Tataryn’s death the estate should be divided 1/3 for John and 2/3 for Edward. The Court of Appeal dismissed the appeal, although it made some additional instructions with respect to how the residue and the trust should be handled.

The role of the Wills Variation Act

The Supreme Court of Canada noted that the Wills Variation Act at the time was unsettled regarding precisely what considerations should govern a court’s decision to vary a will. The Act protects both the interests of a deceased’s surviving spouse and children, and the testamentary autonomy of the deceased – that is, the will-maker’s right to dispose of their property as they wish. Early cases considered what was “adequate, just, and equitable” to be what was required to support the testator’s spouse and children. This was called the need-maintenance approach.

However, the courts noted that the legislation did not exclude claims by independent adult children, who would not be caught under the need-maintenance analysis. Rather than create a separate test for independent adult children, or exclude them all together, the Supreme Court noted that a broader “moral duty” approach had emerged in the jurisprudence but had not completely replaced the need-maintenance approach. The Supreme Court held that a testator’s legal obligations to their spouse and dependent children must be considered first, after which the court must consider moral duties.

The final word

In this case, considering the length of the marriage and Mrs. Tataryn’s contributions to the estate, the Supreme Court found that she was entitled to at least half the estate and possibly additional maintenance. Beyond this, Mrs. Tataryn had a stronger moral claim to the funds the couple had set aside for old age than Edward did. The Supreme Court awarded Mrs. Tataryn title to the couple’s home, a life interest in the rental property, and the entire residue of the estate after the payment of $10,000 to each son. Following Mrs. Tataryn’s death, the rental property would be divided 1/3 to John and 2/3 to Edward.