“Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may, in its discretion, in an action by or on 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 testator’s estate for the spouse or children.”
This section of the Act informs us that only spouses (including common law spouses) and children (including adopted children, but not step-children) are able to bring a wills variation claim. So how does the court (which is defined in the Wills Variation Act as the Supreme Court of British Columbia) decide whether or not the testator left a will that makes “adequate provision for the proper maintenance and support” for his or her spouse or children?
In 1994, the Supreme Court of Canada, the highest and most important court in Canada for establishing legal principles, decided on appeal the British Columbia wills variation case Tataryn v. Tataryn Estate. At the outset of its Reasons for Judgment in Tataryn, the Supreme Court of Canada notes that the law is unsettled as to precisely what considerations should govern a court when faced with a claim under section 2 of the Wills Variation Act. The Supreme Court of Canada expressly used the opportunity presented by Tataryn to clarify the principles applicable to the Wills Variation Act. Thus, this case is the most important case for lawyers and others interested in the legal principles that apply to British Columbia wills variation claims.
The first point that the Supreme Court of Canada makes in its decision on Tataryn, in interpreting section 2 of the Wills Variation Act, is that the section does not impose two different tests. Madame Justice McLachlin (as she then was – she later became the Chief Justice) in rendering the judgement of the court states:
“The court must determine whether the testator has made adequate provision for his spouse and children. If it concludes he or she has not, the court “may, in its discretion. . . order. . . the provision that it thinks adequate, just or equitable in the circumstances. I do not interpret the section as imposing two different tests. The court must ask itself whether the will makes adequate provision and if not, order what is adequate, just and equitable. These are two sides of the same coin.”
Madame Justice McLachlin then went on to consider how the words “adequate, just and equitable” should be interpreted, noting that the courts have arrived at different interpretations of the meaning of those words over time in different cases. She further commented that the language of the Wills Variation Act gives the Court a broad discretion to make an order that is just in the specific circumstances of the case before it and in light of contemporary standards. This comment informs us of two very important elements of a court’s consideration of a wills variation claim. First, the facts of the case before it are crucial in determining whether a variation should be ordered, and if so, how great a variation. Indeed, section 2 of the Wills Variation Act speaks to the importance of the facts of the case where it directs the court to, in its discretion, order “the provision that it thinks adequate, just and equitable in the circumstances to be made” to the wills variation claimant “out of the testator’s estate.” Second, whether adequate, just and equitable provision has been made to the wills variation claimant under the Will is to be determined based on contemporary standards:
“… the [Wills Variation] Act must be read in light of modern values and expectations. What was thought to be adequate, just and equitable in the 1920’s may be quite different from what is considered adequate, just and equitable in the 1990’s.”
Thus, by way of example, a disinheritance or strong preference of one child over another on the basis of their sex or their sexual orientation is not likely to stand up to a wills variation claim today, regardless of whether those may have been acceptable grounds for differentiation in prior years.
The Supreme Court of Canada also makes it clear in Tataryn that the Wills Variation Act does not do away with testator autonomy – the right of a will maker to dispose of his or property upon death as he or she chooses. Rather, it limits that right; testator autonomy must yield, only to the extent necessary as determined by the court, to the right given to spouses and children under the Wills Variation Act, to be provided with what is “adequate, just and equitable” in the circumstances.
After canvassing the uneven treatment of what is “adequate, just and equitable in the circumstances” through decades of court decisions, Madam Justice McLachlin says that much of the uncertainty as to what that phrase means disappears when it is considered in light of current societal norms. She identifies two such norms: (1) legal obligations – “the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise”; and (2) moral obligations – this obligation is grounded in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.”
We will elaborate on legal and moral obligations in the wills variation context in a separate Part 2 article on the Tataryn case from the Supreme Court of Canada.
You can read Part 2 of this article here.