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Wills Variation: Moral Obligation to Children of First Marriage


As I have previously discussed, on a wills variation application, the moral obligation to independent adult children is usually more tenuous than the moral obligation to the surviving spouse or dependent children. Generally speaking, if the size of the estate permits, and in the absence of circumstances negating the existence of a moral obligation, some provision for adult independent children should be made, but the moral obligation to adult children does not typically outweigh the moral obligation to a surviving spouse or dependent children.

That being said, the situation is more nuanced where a wills variation action involves competing claims of the deceased’s second spouse and adult children of the deceased’s first marriage – in such circumstances, where the estate was built up primarily during the first marriage and the children never received an inheritance from the parent who died first, there is an enhanced moral obligation to provide for adult independent children of the first marriage. The logic is that the spouse who died first would have wanted and expected the surviving spouse to provide their shared wealth to their children.

Moral obligation to children where estate built during first marriage

The Court of Appeal in Saugestad v. Saugestad, 2008 BCCA 38 recognized the enhanced moral obligation to the children of the will-maker’s first marriage where the will-maker’s estate was built during his first marriage. The will-maker in Saugestad died in 2003 at age 63. He was survived by his second wife, who was 56 at his death, and his two sons from his first marriage, then ages 30 and 29. Both sons were single with no dependents and no significant assets. The will-maker’s first wife (the mother of his sons) had died in 1989 after 19 years of marriage. The will-maker was wealthy, having accumulated his large estate during his first marriage. The will-maker and his second spouse had been married for about 10 years when he died. She had no children of her own.

Terms of the will and wills variation claim

On the will-maker’s death, his widow inherited the matrimonial home as the surviving joint tenant. She also received the will-maker’s monthly pension, CPP survivor’s benefit, motor vehicles, furniture and artwork, RRSPs, and approximately $28,000 in various bank accounts. The residue of his sizeable estate was to be shared equally between his two adult sons. A clause in the will dated 31 March 1998 explained that the will-maker purposefully chose to not make his widow a beneficiary of his will; the widow was aware of this clause, and she in turn made no provision for him in her will.

Nevertheless, upon his death the widow applied for variation of the will to provide that 80 per cent of the estate go to her. At trial (Saugestad v. Saugestad, 2006 BCSC 1839) the widow received an additional life interest in the will-maker’s half of an investment condominium in Florida, and on appeal, the will was varied further to convert the life interest into outright ownership of the half of the investment condominium, subject to her assumption of the entire remaining mortgage. Thus, the surviving second spouse received a modest variation of the will as opposed to the substantial 80 per cent variation she sought. The bulk of the estate went to the will-maker’s adult independent children from his first marriage.

Competing Moral Obligations

The trial judge summarized the relationship between the will-maker and his second spouse in these terms (at para. 123):

[…] this is a second marriage of moderate length; the testator has children from a previous marriage and much of his estate was accumulated during that first marriage; each party has their own assets and is largely financially independent; and the testator made clear his intention that he wanted his estate to benefit his children, and not the plaintiff’s heirs.  Society’s reasonable expectations of what a judicious husband and father would do in such circumstances may vary much more widely than they might in the case of a life-long marriage in which neither party entered the relationship with significant assets, as was the case in Tataryn.

The trial judge concluded that the will-maker’s children from his first marriage had a strong competing moral entitlement to the will-maker’s estate based in part on the contributions of the will-maker’s first wife to his estate. The trial judge summarized those contributions as childcare and household management as well as benefiting him with her estate on her death. The trial judge presumed that the first wife would have wanted her efforts to benefit her sons rather than the will-maker’s new wife.

Priority of moral obligation to adult independent children upheld on appeal

On appeal, Mackenzie J.A. agreed that the will-maker arranged his affairs in a manner that provided reasonable financial security for his widow while at the same time preferring to benefit his children from his first marriage. The will-maker clearly wanted to provide for his sons, who were only just starting out on their career paths, had no assets or real estate, and had not received the benefit of their mother’s estate. In these circumstances, the moral obligation to the sons was stronger than the moral obligation to the surviving second spouse.

Summary of moral obligation to children of first marriage in a wills variation action

In general, on a wills variation application, the moral obligation to independent adult children does not take priority over the moral obligation to a surviving spouse or dependent children. However, where a wills variation action involves competing claims of a second spouse and adult children of the deceased’s first marriage where the estate was built up primarily during that first marriage and the children never received an inheritance from the parent who died first, there is an enhanced moral obligation to provide for the children of the first marriage. The enhanced moral obligation is supported by the reasoning that the spouse who died first would have wanted and expected the surviving spouse to provide their shared wealth to their children.

 

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