Wills Variation Warrior

British Columbia wills variation lawyers have pause to remember one of the great warriors of the past. One of the seminal decisions for the unique British Columbia statutory provision giving the court authority to change a will is the now 83-year-old Supreme Court of Canada Contested Will Claim Walker v. McDermott [1931] SCR 94. This decision was under the 1924 Testator’s Family Maintenance Act, which later became the Wills Variation Act, the provisions of which are now incorporated in British Columbia’s Wills and Estate Succession Act.

Image result for kerrisdale

In his will, the deceased left the entirety of his $25,000 estate to his second wife. He disinherited his daughter who worked as a stenographer. The second wife voluntarily paid her stepdaughter $1000. Judge Morrison of the Supreme Court of British Columbia ordered that the will be varied such that a further $5000 from the estate be provided to the daughter. While the British Columbia Court of Appeal overturned Judge Morrison, the Supreme Court of Canada restored his decision.

The words of Duff J from this Disputed Will Claim sound to this day,

“What constitutes ” proper maintenance and support ” is a question to be determined with reference to a variety of circumstances. It cannot be limited to the bare’ necessities of existence. For the purpose of arriving at a conclusion, the court on whom devolves the responsibility of giving effect to the statute, would naturally proceed from the point of view of the judicious father of a family seeking to discharge both his marital and his parental duty; and would of course (looking at the matter from that point of view), consider the situation of the child, wife or husband, and the standard of living to which, having regard to this and the other circumstances, reference ought to be had. If the court comes to the decision that adequate provision has not been made, then the court must consider what provision would be not only adequate, but just and equitable also; and in exercising its judgment upon this, the pecuni¬≠ary magnitude of the estate, and the situation of others having claims upon the testator, must be taken into account.”

RT Clegg was the lawyer who successfully argued to the Supreme Court of Canada that the trial judgment in favour of the daughter should be restored. It is difficult to walk past the Kerrisdale bust of this historical great without remembering him as a wills variation giant to whom we all owe a debt of gratitude. As Isaac Newton wrote in a 1676 letter to Robert Hooke, “If I have seen further it is by standing on ye shoulders of Giants.” Some say this Kerrisdale giant grew simple toward the end; his friends say he hid the toll of his struggles behind a disarmingly simple demeanour, sneakers and an imaginary pet by the name of Pete.

But enough of past giants, time marches on. Richter Trial Lawyers is located in Kerrisdale serving the Vancouver westside including Broadway, Dunbar, Kerrisdale, Kitsilano, Oakridge and Point Grey. If you have a question about an unfair will under current Wills Variation Law, call our office for a no obligation consultation or check out our Estate Law Section.

Go to top
Richter Trial Law