By Polly Storey
The Court of Appeal for British Columbia recently had an opportunity to consider, and resolve, a question that has been the source of uncertainty for many years: when will a will-maker’s reasons for favouring (or disinheriting) their adult child be upheld?
In Tom v. Tang, 2023 BCCA 221, Justice Fenlon, for the Court, clarified that a will-maker’s moral duty to adult children must be assessed using the objective standard of the reasonable will-maker.
Adequate, Just and Equitable Provision from Estate
In British Columbia, will-makers owe a duty to make adequate, just, and equitable provision for their surviving spouses and children. Where a person dies leaving a Will that their surviving family member considers falls below that standard, the surviving spouse or child may file a claim to vary the Will pursuant to s. 60 of the Wills, Estates and Succession Act, SBC 2009:
Maintenance from estate
60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding 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 will-maker’s estate for the spouse or children.
Legal and Moral Obligations
Since 1994, the law has been clear that whether a will-maker has made adequate, just, and equitable provision is to be assessed with reference to a will-maker’s legal obligations and moral obligations. These obligations were explained by the Supreme Court of Canada in Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 SCR 807:
1. Legal obligations are those that a will-maker owed during their lifetime. A common example is where a will-maker was in a spousal relationship on death. Whether a will-maker has made adequate, just, and equitable provision for their surviving spouse is assessed with reference to what the surviving spouse would have been entitled to under family property and spousal support legislation, had the relationship ended by separation rather than through death.[1] Will-makers also owe legal obligations to maintain their minor children, and where provision for an adult independent child is at issue, legal obligations may be found in a claim for unjust enrichment.
2. Moral obligations are found in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (Tataryn at p. 821). Various factors have developed in the case law to assess the existence and strength of a will-maker’s moral obligations to their adult children and surviving spouse, including in cases of blended families.[2]
In considering whether a will-maker has met their moral obligations to make adequate, just, and equitable provision, the Court will analyze the will-maker’s reasons for making the distributions contained in the Will.
“Valid” and “Rational” Reasons?
Where a will-maker documents their reasons for favouring or disinheriting an adult child, the Court must consider whether and to what extent to give effect to those reasons by varying or upholding the distribution intended by the will-maker.
For many years, the Courts have analyzed will-makers’ reasons by considering whether those reasons were “valid” (in the sense of being factually true) and “rational” (in the sense of being logically connected to the disposition of the person’s estate).[3] In applying this test, the Courts have noted that “it is not necessary to find the reasons were justifiable. It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance.”[4]
Within the framework set down in Tataryn, however, the ‘valid and rational’ test has provoked judicial commentary. In Tataryn, the Supreme Court of Canada was clear that moral obligations are to be assessed objectively — they are based on society’s reasonable expectations of what a judicious person would do in the circumstances, taking into account contemporary community standards.
But what if a will-maker’s reasons were true (and therefore valid) and connected to the distribution of their estate (and therefore logical), but are not objectively reasonable, having regard to community standards? For example, what if a will-maker disinherited their adult child based on a breakdown of the parent-child relationship arising from the parent’s disapproval of the child’s sexual orientation or the race, religion, or ethnicity of the child’s spouse? In such a case, the will-maker’s reasons may meet the subjective ‘valid and rational’ test, but may fall short of what a judicious parent would do in the circumstances.
Justice Ballance expressed the tension between these concepts this way in McBride v. Voth, 2010 BCSC 443:
[141] … The thorny issue is that the model of inquiry … effectively precludes an assessment of whether the testator’s reasons are objectively justifiable from the standpoint of the contemporary judicious parent of Tataryn. … If the decisions of Bell and Kelly mean that the applicable test is whether a testator has valid (i.e. factually true) and rational (i.e. logically connected to the disinheritance) reasons for disinheriting a child, even where the reasons are unworthy of an objectively judicious parent based on contemporary standards, then they are difficult to reconcile with the fundamental precepts of Tataryn and the search for contemporary justice in the circumstances. (Emphasis added.)
In Tom v. Tang, 2023 BCCA 221, the Court of Appeal had had opportunity to reconcile and clarify these seemingly inconsistent standards.
The Tom Family
Tom v. Tang involved a dispute between the five adult children of Mrs. Tom over the disposition of her estate.
In the 1960s, Mr. and Mrs. Tom immigrated to Vancouver with their five children ranging in age from 8 to 17. The family arrived with little money. As recognized at trial and on appeal, “All members of the family worked remarkably hard, contributing whatever they earned to the common family purse” (para. 3). As the children grew up, all five maintained positive relationships with their parents, and after Mr. Tom’s death, “all five children were dutiful and devoted to their mother, visiting or calling regularly, taking her to appointments, dim sum and social activities, staying with her when she needed support and visiting her when she was at the hospital and later in hospice” (para. 8).
Even though each of the children supported and assisted Mrs. Tom during her lifetime, it was conceded that two of the five children, Rose and Samsun (and his wife, Joyce), were the Deceased’s primary caregivers for the last 3 years of her life.
Mrs. Tom’s Will and Reasons
Shortly before Mrs. Tom’s death, she made a new Will. The Will represented a significant change from Mrs. Tom’s prior estate plan, where she had divided her estate equally amongst her children.
In Mrs. Tom’s new Will, she provided her home (“West 64th”) to Rose and Samsun equally. She divided her remaining assets (worth about $700,000) equally amongst all five children. The trial judge described the effect of this Will, noting that it would provide each of Rose and Samsun with approximately 42% of their mother’s estate. By comparison, the three other children would each receive approximately 5%.
Mrs. Tom’s reasons for making the Will were clear. She had written a letter explaining that she wanted to favour Rose and Samsun because they had cared for her and been a comfort since her husband’s death. Though the other children agreed that Rose and Samsun should receive preferential treatment based on their comparatively greater care for the Deceased during the last three years of her life, they disputed the magnitude of that preference. They sought a variation of the Deceased’s Will under s. 60 of WESA.
Trial Judgment and Grounds of Appeal
At trial, the judge agreed that Mrs. Tom’s Will should be varied.
The judge noted that West 64th was purchased at a time when the family was a joint economic unit, and that the contributions by the children to the family’s economic life were substantial. While Rose and Samsun ought to be recognized for their significant sacrifices in the last 3 years of the Deceased’s life, the Will did not make adequate, just, and equitable provision for the other three children in the circumstances. The judge varied Mrs. Tom’s Will to give each of Rose and Samsun $300,000, with the remainder of the estate being divided equally amongst the five children.
Rose and Samsun appealed. They argued, in part, that because their mother’s reasons were valid and rational, as conceded by their siblings, the judge ought to have declined to vary the Will.
The siblings resisted the appeal. In doing so, they highlighted the apparent inconsistency between the “valid and rational” test for analyzing a will-maker’s subjective reasons and the Court’s direction in Tataryn regarding the need to consider whether a parent met the objective standard of a reasonable will-maker.
Reconciling a Will-Maker’s Subjective Reasons with an Objectively Reasonable Standard
In resolving Rose and Samsun’s arguments, Justice Fenlon returned to first principles. She affirmed that “a case is only an authority for what it actually decides” (para. 30), and proceeded to carefully review each of the relevant cases. The Court concluded that although the “perceived conflict has been the source of some difficulty and concern”, “when the cases are read contextually there is no conflict” (para. 26):
[51] In summary, Bell CA, Kelly and Hall do not stand for the principle that a testator’s unequal treatment of adult children must be deferred to, without regard to the objective standard of the reasonable testator and current social norms, as long as the subjective reasons given for the unequal distribution are valid and rational. These cases recognize instead that a testator’s moral duty to adult children must be assessed from the viewpoint of a reasonable testator, and that the moral duty may be negated where there is just cause.
Variation of the Will and Preservation of Mrs. Tom’s (Valid and Rational) Reasons
Applying this standard, the Court of Appeal agreed that Mrs. Tom’s Will should be varied. Even though Rose and Samsun had provided comparatively greater assistance to their mother during the last three years of her life, this was not a case where a will-maker’s moral obligation was reduced by reason of estrangement or misconduct. Rose and Samsun deserved to be preferred due to their greater care, but all five children continued to be dutiful, devoted, and loving to their mother. The question was therefore to what extent Rose and Samsun should be favoured, compared to the other children.
Here, the moral claim arising from the children’s contributions to the family economy, which facilitated Mr. and Mrs. Tom’s purchase of West 64th, was significant. These financial contributions continued as the children grew up and became adults. In addition, up until the last three years of the Deceased’s life, the children had been equally close to and supportive of their mother. In these circumstances, Mrs. Tom’s provision of 5% each to three children, with the remaining 85% being divided amongst Rose and Samsun, fell below the standards of a judicious parent in the circumstances.
The Court ordered that Rose and Samsun should each receive 30% of the Estate, with the remaining 40% being shared equally amongst the other three children (such that each received approximately 13.3%).[5] Varying Mrs. Tom’s Will in this way met her moral obligations to all of her children, while also giving effect to her wish to reward Rose and Samsun with a greater share of her Estate.
The Judicious Will-Maker: Objectively Reasonable and Subjectively True and Logical
Tom v. Tang is an important decision for parties and counsel dealing with wills variation matters. In this case, Justice Fenlon has resolved a question that has been the source of considerable uncertainty in the law, clarifying that a Court is not required to give effect to a will-maker’s reasons based only on consideration of whether those reasons are true and logically connected to the act of disinheritance. Instead, a will-maker’s moral obligations must be assessed using the objective standard of a reasonable will-maker, as mandated by Tataryn. Those obligations may be negated where there is “just cause”. In other words, it is not enough for a will-maker’s reasons to be valid and rational — the will-maker must nonetheless meet the objective standard of a judicious parent.
For assistance with your estates, trust, or elder law matter, please contact Polly Storey or another member of Clark Wilson LLP’s Estates & Trusts Practice Group.
[1] The Courts have cautioned that in applying this approach, a wills variation proceeding “should not normally become a proxy for divorce proceedings, complete with the elaborate features and special rules applicable to a family law trial”: Kish v. Sobchak Estate, 2016 BCCA 65 at para. 49.
[2] See, for example, McBride v. Voth, 2010 BCSC 443 at paras. 128-135, Dunsdon v. Dunsdon, 2012 BCSC 1274 at para. 124; Picketts v. Hall (Estate), 2009 BCCA 329 at para. 63; J.R. v. J.D.M., 2016 BCSC 2265 at para. 92.
[3] Bell v. Roy Estate (1993), 75 B.C.L.R (2d) 213, 1993 CanLII 1262 (C.A.); Kelly v. Baker (1996), 82 B.C.A.C. 150, 1996 CanLII 1596, and Hall v. Hall, 2011 BCCA 354.
[4] Hall v. Hall, 2011 BCCA 354 at para. 43.
[5] Though the trial judge had awarded Rose and Samsun a lump sum amount, Justice Fenlon preferred to formulate the award using percentages instead. Such an approach recognized that the value of West 64th was likely to have increased such that it would better preserve the distinctions between the distributions to Rose and Samsun, on the one hand, and their siblings, on the other.
