Do Prior Gifts Reduce a Wills Variation Award in British Columbia?

One of the most common arguments raised in wills variation claims is that the deceased already “took care of” the claimant during their lifetime. Parents often help adult children with down payments, education costs, or business loans. When the will later leaves that same child little, or nothing, the executor often argues that those earlier gifts should reduce or defeat a wills variation claim.

In British Columbia, prior gifts can matter. But they are rarely decisive on their own.

The Legal Framework: Moral Duty Comes First

Wills variation claims in BC are governed by section 60 of the Wills, Estates and Succession Act (“WESA”). The court’s task is not to enforce a testator’s wishes at all costs, but to determine whether the will makes adequate, just, and equitable provision for a spouse or child.

The starting point remains the Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate, [1994] 2 SCR 807. Courts must balance legal obligations and moral obligations, assessed at the time of death, not years earlier when gifts may have been made.

This is where prior gifts come into play, but only as part of the broader moral analysis.

When Prior Gifts May Reduce a Claim

BC courts have repeatedly held that substantial lifetime gifts can reduce a testator’s moral obligation, particularly where the evidence shows the gift was intended as part of the deceased’s overall estate plan.

In Dunsdon v. Dunsdon, 2012 BCSC 1279, the court considered significant financial assistance provided to an adult child during the deceased’s lifetime. The court accepted that these benefits were relevant and reduced the moral claim, though they did not eliminate it entirely.

The key point is intention. Courts look closely at whether the deceased intended the gift to be:

  • an advance on inheritance, or
  • a standalone act of generosity unrelated to estate planning.

Without clear evidence, courts are reluctant to treat lifetime gifts as a substitute for testamentary provision.

When Prior Gifts Carry Little Weight

Prior gifts are far less persuasive when:

  • the gifts occurred many years before death,
  • the deceased continued to provide support afterward,
  • the claimant’s financial circumstances deteriorated, or
  • the will leaves the claimant inadequately provided for in light of contemporary standards.

In Tom v. Tang, 2018 BCSC 1917, the court emphasized that moral obligations are assessed at the time of death, not frozen at the moment a gift was made. Even where a child had received assistance earlier in life, that did not relieve the testator of the obligation to make reasonable provision later.

Courts are also skeptical of vague claims that a parent “gave them lots over the years” without documentary or reliable evidence. General parental support such as help with rent or groceries rarely justifies disinheritance.

Unequal Gifts Between Children Matter

Another recurring issue is fairness among siblings. If one child received substantial lifetime gifts and others did not, courts may view unequal testamentary treatment as more justifiable. However, unequal gifting can cut both ways. In McBride v. Voth, 2010 BCSC 443, the court scrutinized not only what the claimant received, but what others received as well.

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