By Dylan Segal
If a loved one has died, you may or may not be included in the will. If you have been included, but are surprised or disappointed with your gift, or you have been excluded entirely, and you are either a child (biological or adopted) or spouse of the will maker, then under the laws of British Columbia, you have a legal entitlement to seek a variation of the will.
Hobbs Giroday practices extensively in the area of wills variation. As a child or spouse, a testator may owe you one, or both, of a moral and legal duty. But, what are moral and legal duties?
A testator may owe a moral duty to a child or spouse, if the size of the estate permits. The starting point in the analysis is to consider what size the estate is and whether it may accommodate benefitting all interested parties, taking into consideration the will maker’s intentions.
There is much case law regarding the factors to consider when analyzing the degree of moral duty owed. Each case must be assessed on its facts. If you are a disinherited child and want to discuss what kind of moral duty a testator may owe you, contact us for a free consultation regarding your situation.
The focus of this missive, however, is to uncover the often less understood, ‘legal duty’.
Legal duties are often discussed in relation to a will maker and a disinherited spouse. A dependent child may be owed a legal duty as well.
The seminal case of Tataryn v Tataryn Estate,  2 SCR 807 explains legal duties as follows:
 The legal obligations on a testator during his or her lifetime reflect a clear and unequivocal social expectation, expressed through society’s elected representatives and the judicial doctrine of its courts. Where provision for a spouse is in issue, the testator’s legal obligations while alive may be found in the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp), family property legislation and the law of constructive trust…Maintenance and provision for basic needs may be sufficient to meet this legal obligation. On the other hand, they may not. Statute and case law accepts that, depending on the length of the relationship, the contribution of the claimant spouse and the desirability of independence, each spouse is entitled to a share of the estate. Spouses are regarded as partners. As L’Heureux-Dubé J. wrote in Moge v. Moge, 1992 CanLII 25 (SCC),  3 S.C.R. 813, at p. 849:
… marriage is, among other things, an economic unit which generates financial benefits …. The [Divorce] Act reflects the fact that in today’s marital relationships, partners should expect and are entitled to share those financial benefits.
The legal obligation of a testator may also extend to dependent children. And in some cases, the principles of unjust enrichment may indicate a legal duty toward a grown, independent child by reason of the child’s contribution to the estate. The legal obligations which society imposes on a testator during his lifetime are an important indication of the content of the legal obligation to provide “adequate, just and equitable” maintenance and support which is enforced after death.
We see from this statement of law that a legal duty to a spouse originates from family law statutes and principles. A legal duty may also be owed to a dependent child or an independent adult child via contributions made to a testator’s estate.
All the circumstances relevant to calculating the value of a moral duty owed are outside the scope of this article. Consider one example, being the common position of a spouse who is either disinherited or left a small gift under a will. The spouse often says in such circumstances, ‘my husband or wife owed me a legal duty and the gift I received falls short of such duty’.
What the courts will often do in face of such a position is look to Family Law to determine whether the legal duty has been fulfilled.
In Houston v Fowler, 2014 BCSC 489, the court noted the following:
 In determining whether Bob made adequate provision for Angela, the first step is to determine his minimum legal obligations. For a spouse, the legal obligations are measured by a notional division of family property under the Family Relations Act, R.S.B.C. 1996, c. 128, and a notional determination of Angela’s right to support under the
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), immediately before Bob’s death. See Glanville v. Glanville (1998), 1998 CanLII 6031 (BC CA), 58 B.C.L.R. (3d) 240 (C.A.) at paras. 14-15.
In other words, the court will look to what a spouse would be entitled to under the property division provisions of family law legislation existing at the time of the testators’ death in the context of the assets, liabilities, income and expense of the estate and financial positions of the parties to the dispute.
If you are a child or spouse disappointed with your gift under a will, or disinherited completely, call or email us to have a free, preliminary consultation.