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Proposed Change to the Wills Variation Act |
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In British Columbia, the court may vary a will if the court finds that the will did not make adequate provision for deceased's spouse (including a common-spouse) or child. This is set out in the Wills Variation Act. Laws allowing a spouse or a minor child to vary a will are common in Canada. But British Columbia's Wills Variation Act is a little different from legislation in most of the other provinces in that it allows an independent adult child to apply to court to vary his or her parent's will.
Should an independent adult child be able to apply for a greater share of his or her parent's estate than what the parent provided in the will? This is an issue that is being debated among lawyers who practice wills and estates law.
Last June, the British Columbia Law Institute published a paper entitled Wills, Estates and Succession: A Modern Legal Framework, which recommends significant changes to the law. The proposed changes include doing away with the right of independent adult children to make a claim if their parents do not make adequate provision for them. Only those children who meet certain criteria would be able to apply if these changes are made. Specifically, the court would only be able to vary a will in favour of those children who are minors, are students under 25, or are not self-supporting and are unlikely to become self-supporting by reason of "illness," "mental or physical disability," or "other special circumstances…."
I can see both sides of this issue.
One side may argue that once a parent has provided for a child, the child is grown up and on his or her own, the parent should be able to decide how much to leave the child. The parent may have good reasons for leaving more to one child than to another child, for cutting a child out, or for leaving most of the parent's wealth to a spouse, to other family members or to charity. In the vast majority of cases the parent will treat his or her children fairly in any case.
But on the other hand, you might consider some of the cases that have gone to court.
1. In Gray v. Nantel, 2002 BCCA 94, the plaintiff's father separated from his mother when he was one year old. After the separation the father saw the plaintiff only once while the plaintiff was growing up. When the plaintiff turned 18, he tried to reconcile with his father, but his father treated him shabbily. The father effectively disinherited the plaintiff in favour of two of the father's other children. The B.C. Court of Appeal awarded the plaintiff 30% of the estate.
2. In Prakash and Singh v. Singh, 2006 BCSC 1545, the deceased mother left $10,000 to each of her three adult daughters and the rest of her estate to her two sons. They would receive about $260,000 each. Her reason was that in her cultural tradition, parents left their estates to their sons rather than daughters. The family had lived in Canada since 1974. The court gave each of the two daughters who applied to vary the will one-fifth of the estate.
3. In Peden v. Peden and Smith, 2006 BCSC 1713, the deceased father left $150,000 and a third of the residue of his estate in a trust fund for the plaintiff son. Under the will, the son would receive the income from the investments in the trust fund, but would not have control of the trust funds. In contrast the father left the rest of his estate to his other two sons as outright gifts. The court found that the father treated the plaintiff differently was because he did not approve of the plaintiff's sexual orientation. The court varied the will to give the plaintiff his share outright.
To be sure, these are exceptional cases. But, on balance, I think it important to allow the court the ability to vary a will in cases such as these. The proposed changes would take away the courts' powers to vary a will in cases where a parent has abandoned a child without good reason, favoured sons over daughters or left little or nothing to a dutiful child solely because of the child's sexual orientation.
It is important to keep in mind that the Wills Variation Act does not require the courts to vary a will every time an adult child feels that he or she is entitled to a greater share of a parent's estate. The courts can, and do, distinguish between meritorious and unmeritorious claims. In many cases, the courts have dismissed claims brought by independent adult children.
I think it would be a mistake to take away the court's discretion in Wills Variation Act claims by adult children. |
