On wills variation claims, the courts are frequently tasked with balancing the moral obligations of a will-maker to a second spouse and to an adult independent child from the will-maker’s first marriage.
In Mars v. Bain, 2011 BCSC 1714 the deceased’s will provided his common law spouse with just 4% of his $1.5 million estate, while the residue went to his 62 year-old son from his first marriage. The surviving spouse sought a variation of the will.
Armstrong J. determined that the size of the estate, the length of the spousal relationship, and the surviving spouse’s dedication to her husband while he was ailing supported her claim for a larger share of the estate. This was so despite the surviving spouse having no financial need for an increased share, while the adult son was “in serious need of support” from his father’s estate.
Mr. Bain died in 2008 at the age of 84. He had lived in a “marriage-like” relationship with Ms. Mars for the nine years prior to his death. Ms. Mars cared for Mr. Bain during his illness in his final years. Ms. Mars was also of advanced age.
Mr. Bain had only one child, a son named David from his first marriage. Ms. Mars did not have children. David, who was 62 at the time of trial, described himself as a “drifter” throughout his working life. He was not gainfully employed and lived on money from his father’s estate. He at times had a volatile relationship with his father, but their relationship improved in the years before his father’s death.
When he died, Mr. Bain left an estate valued at $1.5 million. His largest assets at the time of his death were a $175,000 bank account and two properties in Vancouver acquired before he met Ms. Mars: a home on Odlum Street valued at $700,000 and a home on MacLean Drive valued at $545,000. Ms. Mars and Mr. Bain lived together at the Odlum Street home until his death and also rented out units in the home. David lived at the McLean Drive home and collected rents from that property as well.
Mr. Bain made a will in 2005 which left Ms. Mars a life estate in the Odlum Street property and a bequest of $50,000. The residue of his estate was left to David.
The issue was whether the will made adequate provision for the proper maintenance and support of Ms. Mars, and if not, what provision would be adequate, just and equitable in the circumstances.
The determination of what is a fair division of an estate is governed by the principles set out in Tataryn v. Tataryn Estate,  2 S.C.R. 807.
In essence, claims based on legal obligations will generally take precedence over those based on moral duties, and what is adequate, just and equitable in the circumstances is judged by contemporary standards.
The court was satisfied that the provisions in the will met Mr. Bain’s legal obligation to Ms. Mars. After Mr. Bain’ death, she received the rent from the Odlum Street property and a pension of $1,000 per month. The $50,000 bequest in the will was “more than adequate” to support her in the same manner as when Mr. Bain was alive.
A will-maker has a legal obligation to provide for dependent children and in some cases, there may be a legal obligation toward a grown, independent child by reason of the child’s contribution to the estate. As David was an adult independent child who did not make contributions to his father’s estate, there was no legal obligation to make testamentary provision for him.
The second question was whether Mr. Bain’s will satisfied his moral obligations to family members that could reasonably be expected of a judicious person in like circumstances.
On the issue of tension between competing moral obligations to adult independent children and a surviving spouse, Armstrong J. cited the following passage from Bridger Estate v. Bridger, 2006 BCCA 230:
 … Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults. While, as McLachlin J. observes in Tataryn, there may be a number of options for dividing assets by a testator which are adequate, just and equitable, I do not think they include a disposition that entirely prefers the moral claims of adult independent children to those of a loyal spouse who provided care for the testator over years of debilitating decline.
Armstrong J. concluded that society would reasonably expect a person in Mr. Bain’s circumstances to have acted differently. At the time of his death the provisions for Ms. Mars were inadequate in view of the size of the estate, the nature and duration of their relationship and the fact that she was a dedicated spouse who provided care and support during Mr. Bain’s later years. While Ms. Mars did not contribute to the acquisition of Mr. Bain’s assets and there was no evidence that she had an expectation of sharing Mr. Bain’s properties, a judicious person would have considered it his moral obligation to provide additional capital to Ms. Mars.
However, Armstrong J. also concluded that there was a moral obligation owed by Mr. Bain to his son. Daniel was “vocationally and economically vulnerable” and had no income or property of his own. He was dependent on the estate for his living expenses and the court found him to be “in serious need of support.”
As such, Armstrong J. concluded that the moral obligation to Ms. Mars would be met by a bequest of $200,000 in addition to the life estate in the Odlum Street property, and varied the will accordingly. Daniel received the residue of the estate after the $200,000 bequest.
Interestingly, in the issue of liquidity of the estate, the court acknowledged that it would be necessary to sell the McLean Drive property to satisfy the increased bequest to Ms. Mars, however, the court suspected that sale of that property would be necessary regardless of the variation of the will.
On a wills variation claim, there may be a number of options for dividing assets by a will-maker which are adequate, just and equitable, but they do not include a disposition that entirely prefers the moral obligations to adult independent children over those owed to a loyal spouse who provided care for the will-maker over years of debilitating decline. That being said, as this case illustrates, the financial circumstances of adult independent children will be taken into consideration in balancing competing claims.
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