Wills and Estate Law – Court Considerations in Wills Variation Cases

In the recent case of Peterson v. Welwood, 2018 BCSC 1379 (“Peterson”), a son sought, amongst other things, to vary his father’s will for failing to make provision which was adequate, just, and equitable in the circumstances.

In making its analysis, the Court stated that the following considerations have been accepted as informing the existence and strength of a testator’s moral duty to independent children:

  • the relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
  • the size of the estate;
  • contributions by the claimant;
  • any reasonably held expectations of the claimant;
  • the standard of living of the testator and claimant;
  • gifts and benefits made by the testator outside the will;
  • the testator’s reasons for disinheriting;
  • financial need and other personal circumstances, including disability, of the claimant;
  • misconduct or poor character of the claimant; and
  • competing claimants and other beneficiaries (para 190).

Relevant to the inquiry in Peterson was the fact that the plaintiff’s father had put the plaintiff on title to the father’s residence as a joint tenant, and the plaintiff became the sole owner of the property after his father died. The Plaintiff also received certain Canada Savings Bonds directly from the Deceased.

In balancing the factors noted above, the Court ultimately refused to vary the Deceased’s Will and found as follows:

[246] The plaintiff undoubtedly believes that his father has treated him unfairly. The Deceased’s disappointment and mistrust in his son, whether justified or not, appears to have precipitated the change in his estate planning. However, even with the change, the plaintiff received approximately 51% of the Deceased’s assets as of the date of death. This disposition was one of a range of possible dispositions of his assets. In all the circumstances, I am unable to conclude that the Deceased chose an option that fell outside the range of options that might be considered appropriate by a contemporary judicious parent. The appellate authorities have repeatedly cautioned that if a will-maker arranges his affairs in a manner that falls within the range of options that might be considered appropriate by a contemporary judicious parent, the will-maker’s testamentary autonomy must be respected.

If you have a question about a wills variation issue, please contact Heath Law LLP at 250-753-2202 and ask to speak to someone in the Wills and Estates Department.