In an earlier article, we introduced the Supreme Court of Canada decision Tataryn v. Tataryn Estate (1994) as the most important case for understanding the legal principles that apply to British Columbia wills variation claims. We ended off by referencing that Courts’ identification of two obligations that have significance in considering a wills variation claim, namely, legal obligations and moral obligations. In this article, we expand upon those obligations as explained in the Tataryn decision.
During his or her lifetime, a testator (the will maker) has a well-established legal obligation to support his or her spouse and minor children. Madam Justice McLachlin, speaking for the unanimous court in Tataryn, states:
“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: Pettkus v. Becker, [1980] 2 S.C.R. 834; Sorochan v. Sorochan, [1986] 2 S.C.R. 38; Peter v. Beblow, [1993] 1 S.C.R. 980. 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-Dube` J. wrote in Moge v. Moge, [1992] 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.”
Madam Justice McLachlin accepts that a testator’s estate should be responsible for similar legal obligations to that borne by the testator to his or her spouse and minor children during his or her lifetime.
“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.”
The obligation to provide “adequate, just and equitable” maintenance to a wills variation claimant, as a reminder, arises from section 2 of the Wills Variation Act.
The Supreme Court of Canada in Tataryn also informs us that the court determining a wills variation claim must also consider the testator’s moral obligations toward spouse and children. Unlike legal obligations, these moral obligations have no clear legal standard by which they are determined. Nonetheless, in contemporary (British Columbia) society, most people agree that a strong moral obligation exists on a supporting spouse to make provision from his or her estate after death for a dependent spouse, and, directly or indirectly, for his or her minor dependent children. Further, most people agree that a moral obligation is owed to an adult dependent child, to the extent the size of the estate and the legal and moral obligation to spouse and others allow. While noting that the moral obligation to an adult independent child is more tenuous, the Supreme Court of Canada indicates that some provision should be made in a will for adult children if the size of the estate allows for it and there are no circumstances that would negate such an obligation.
But where there are competing legal and moral claims on an estate, Tataryn directs that claims based on both legal and moral obligations should generally take priority over those based on a moral obligation alone. Thus, in the absence of compelling reasons to the contrary, claims of spouses and minor children will have priority over the claims of adult children, particularly independent adult children. If the size of the estate allows for it, all legal and moral claims should be recognized.
Tataryn also makes it clear that in many wills variation cases, there will be more than one way of dividing the estate that would meet the “adequate, just and equitable” provision requirement of the Wills Variation Act. If the testator has made a will that falls within the range of providing adequately, justly and equitably to the wills variation claimant, the court should not vary the will. Testator autonomy, the freedom of the will maker to dispose of her property after death as she likes, is not to be interfered with lightly and only to the extent that the Wills Variation Act and the circumstances of the case requires.