Unfair Wills and Testator Autonomy: Striking a Balance

Balancing a will maker’s autonomy with wills variation

A recent National Post article reporting on a decision involving variation of an unfair will has gotten significant media attention and generated numerous online comments. The article summarizes the decision of Grewal v. Litt, 2019 BCSC 1154, in which a mother’s will left 93% of her million dollar estate in the hands of her two sons while their four daughters received a paltry 7% despite contributing significantly to the family farm as children. Using the statutory authority to vary a will under BC’s Wills, Estates and Succession Act, the court redistributed the estate to give the daughters $1.35M and the sons $1.8M.

The article generated significant commentary on social media with many commentators remarking about “activist judges” interfering with private property rights. Some of the highlights include:

“Activist judges are now projecting their ideological pathologies on the indian community”

“Terrible decision. Your property is yours, and your last will & testament is a legal document that should not be meddled with by the courts. 
This is another example of a judge letting their personal social biases inappropriately affect a legal decision.”

“What right does the courts have to decide the distribution of assets when a will is clearly written. This is so wrong.”

“Super dangerous decision. While it seems wrong to most of us for the parents to decide to do that, it remains their prerogative to split their money as they wish. Plenty of people write certain family members out of their wills and I do not want a judge deciding to overturn someone’s wishes for their will.”

Does the court go too far in favouring “fairness” over private property rights? Is this the work of activist judges? What right does the court have to interfere? These are just some of the questions being asked.

The starting point for the discussion is the uniquely made in BC Wills, Estates and Succession Act and section 60 of the act which allows the court to vary a will that doesn’t adequately provide for a will-maker’s spouse or children:

60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding on or behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

The variation of wills in the Wills, Estates and Succession Act, mirror that of the former Wills Variation Act. In 2008-2009, the BC legislature undertook reformation of the patchwork of estate legislation in BC, including the Wills Act, Wills Variation Act, Estate Administration Act, Probate Recognition Act and portions of the Law and Equity Act. However, the power of the court to vary an unfair will under the above wording has been a part of the law in BC since 1920 when BC adopted New Zealand’s wills variation legislation in order to ameliorate some of the social issues caused by disenfranchisement (See McLachlan J’s comments in Tatyrn v. Tatyrn, [1994] 2 SCR 807).

Does this mean the court will intervene to vary any will that doesn’t give children or spouses an equal share? Not necessarily, but the wills variation provisions certainly limit the absolute right of a testator to dispose of their property. As the Supreme Court of Canada explained in Tatyrn:

“The Act did not remove the right of the legal owner of property to dispose of it upon death.  Rather, it limited that right.  The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was “adequate, just and equitable in the circumstances.”  And if that testamentary autonomy must yield to what is “adequate, just and equitable”, then the ultimate question is, what is “adequate, just and equitable” in the circumstances judged by contemporary standards.  Once that is established, it cannot be cut down on the ground that the testator did not want to provide what is “adequate, just and equitable”.”

What does adequate, just and equitable mean? The court in Tatyrn refers to two societal norms that shape the meaning of the words. The court refers to legal and moral obligations a will-maker has to their spouse and children. Legal obligations would include an obligation to share family property with a spouse, and child/spousal support. Moral obligations include “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (Tatyrn).

How far does the law go to limit that right? The Supreme Court in Tatyrn explained that there are number of options to divide assets in an estate in an “adequate, just and equitable” way. Where a will-maker’s estate distribution falls within the range of reasonable options, the court should not disturb it. In Tatyrn, McLachlan J specifically commented on the importance of testator autonomy and that it is not to be interfered with lightly:

“I add this.  In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable.  In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances.  Provided that the testator has chosen an option within this range, the will should not be disturbed.  Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve.  In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him.  It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires.”

Does a will-maker have a duty to provide for independent adult children?While many people accept a will-maker’s obligation to provide for a spouse or dependent adult children (such as those with a disability), what about independent adult children who are self sufficient? Since the Supreme Court of Canada’s decision in Tatyrn a sizeable body of law has developed around how to assess a will-maker’s moral obligation to provide for those independent adult children. To assess how strong the “moral duty” is to provide, the court in Dunsdon v. Dunsdon, 2012 BCSC 1274 set out a number of factors to consider, including:

  • the relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
  • size of the estate;
  • contributions by the claimant
  • reasonably held expectations of the claimant
  • standard of living of the testator and claimant
  • gifts ad benefits made by the testator outside the will
  • testator’s reasons for disinheriting
  • financial need and other personal circumstances, including disability of the claimant
  • misconduct or poor character of the claimant
  • competing claimants and other beneficiaries.

In light of the above, simply being a child of a will-maker does not automatically entitle a child to a proportionate share of the estate and the court retains discretion to find that a claimant may not be entitled to a variation of a will where they are financially independent or their estrangement from the will-maker is due to their own fault.

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