Can the Obligation to the Child be Replaced by Benefitting the Grandchildren

Can the Obligation to the Child be Replaced by Benefitting the Grandchildren?

In an April, 2021 BC Court of Appeal decision, the court considered a variation of a will on the basis that the testator’s moral obligation to his daughter was not discharged as he benefited her sons at her own expense. In Scurek v Scurek, 2021 BCCA 178, the testator made a will which allocated 50% of the residue of his estate to his son, and the remaining 50% to be divided between his daughter and her two sons. The testator’s daughter sought to have the will varied to have her inherit 50% of the residue of the estate and her brother to inherit 1/6 as she was in a worse financial position.

How to Vary a Will

A variation of a will is governed by section 60 of the Wills, Estates, and Succession Act, SBC chapter 13 (WESA). A will may be varied if, in the court’s opinion, the will-maker does not make adequate provisions for the proper maintenance of a spouse or child, the court may, order a provision it thinks is adequate, just, and equitable in the circumstances.

Section 60 of WESA has been articulated as a two-stage process in Tataryn v Tataryn Estate, [1994] 2 S.C.R. 807. The court must determine whether the provisions made for the spouse or child are adequate for the proper maintenance and support, and if not, the court must address the provision that it considers adequate, just and equitable. In Scurek, at both the BC Supreme Court and the BC Court of Appeal, the provisions were determined not be an adequate provision. However, what was adequate, just, and equitable in the circumstances was determined to be different at each level of court. Ultimately, it was determined at the BCCA that 1/12 of the residue of the estate would be given to each grandchild, and the remainder would be divided equally between the testator’s son and daughter.

Moral Obligation to the Child

In Scurek, it was not argued that a legal obligation was owed to the testator’s daughter. This case turned on the moral obligations owed to the daughter, and important considerations the will-maker should have taken in to account regarding provision for his children. These considerations included: that the provision for the daughter could not be sufficient to provide substantial financial support; the testator’s son was financially secure and comfortable, whereas the daughter was not; and the son received property from the testator outside of the estate. In addition to an under-share between the daughter and her brother, the will did not give the daughter an adequate amount compared to her children. There is no moral obligation owed to grandchildren under WESA. Therefore, taking in to consideration the daughter’s need for financial assistance, while maintaining the testator’s autonomy, the remainder of the estate was split equally between the two children.