On a wills variation application, the date of death of the will-maker is the date to be used in determining whether a will-maker has made adequate provision for the proper maintenance and support of a spouse or children. When determining whether adequate provision was in fact made, the court cannot consider substantial changes in the circumstances of an applicant or a beneficiary in the intervening period between the date of death and the date of trial unless those changes were reasonably foreseeable at the time of the will-maker’s death.
Eckford: Surviving spouse’s decline in health not reasonably foreseeable
I previously discussed Eckford v. Vanderwood, 2014 BCCA 261, a wills variation application brought by a surviving spouse who became seriously ill and unable to work after her husband’s death. The court dismissed her wills variation application as the post-death change in her circumstances was not reasonably foreseeable. There was nothing in the evidence that suggested her husband should have reasonably foreseen the rapid decline in her health within a short time of his death.
Landy: Subsequent death of infirm spouse was reasonably foreseeable
For comparison, today’s post will examine Landy v. Landy Estate, (1991) 60 B.C.L.R (2d) 282 (C.A.), the judicial authority for the principle that the will-maker’s date of death is the date to be used when assessing adequate provision on a wills variation application. In Landy, the death of the will-maker’s elderly spouse a year after his own death was a change in circumstances that was reasonably foreseeable, and thus taken into consideration in determining whether the applicant (the will-maker’s only natural child) received adequate, just and equitable provision in the will.
Facts in Landy
The will-maker, Mr. Landy, died in 1988 at the age of 90 with an estate valued at approximately $160,000. By the terms of his will prepared in 1978, his only biological child from his first marriage, Larry, received $10,000. The residue went to Mr. Landy’s second wife. By all accounts, Larry was a devoted son who worked many hours without remuneration in helping build his father’s business.
One year after Mr. Landy died, his second wife passed away. By the terms of her will, her estate was to be divided among her five biological children from her first marriage. The combined effect of Mr. Landy’s will and of her will was that her relatives received by far the major share of Mr. Landy’s estate. Larry commenced a wills variation application.
Relevant date on wills variation application
The Court of Appeal in Landy reviewed the conflicting lines of authority and decided that the relevant date to be used in determining whether a will-maker has made adequate provision for the proper maintenance and support is the date of the death of the will-maker, that being the last chance he or she had to make a proper will. On a wills variation application, a court should take into consideration the circumstances existing and reasonably foreseeable to the will-maker as at that date.
Circumstances reasonably foreseeable when Mr. Landy died
Mr. Landy was aware his elderly spouse was ill. She had been in very poor health for a number of years; in fact, she was in the hospital at the time of his death. Thus, at the time of Mr. Landy’s death it was reasonably foreseeable that the life expectancy of his wife was limited. It was also reasonably foreseeable that his estate would pass to her beneficiaries and she would not make provision in her will for Larry.
The Court of Appeal concluded that Mr. Landy’s will did not make adequate provision for the proper maintenance and support of his son, given the circumstances reasonably foreseeable at the time of the Mr. Landy’s death.
The Court determined that a bequest of $60,000 would be adequate, just and equitable provision for Larry. This increased bequest was bolstered by the fact that Larry, a dutiful son who frequently assisted his father without remuneration, had a strong moral entitlement to a greater share in of his father’s estate.
Bottom line on wills variation application based on post-death change in circumstances
As Landy indicates, on a wills variation application to determine whether a will makes adequate provision the relevant date is the date of death of the will-maker. A post-death change in circumstances may warrant variation of a will, but to that end, a court may only consider circumstances that were both existing and reasonably foreseeable to the will-maker at the date of his or her death.