"The love of money is the root of all evil: which while some coveted after, they have ... and pierced themselves through with many sorrows."
1 Timothy 6, The Bible, King James Version
Don't let anyone tell you differently: in Canada, the law on dependent relief from wills which exclude a child or two, is a dog's breakfast.
Whether you can change your mother or father's will which excludes a child depends on which province you live in.
Canada's provincial laws on changing a will to make adequate provision for a dependent, was inspired by a New Zealand law.
The public policy basis for the present Canadian laws are essentially the same in each province.
The Alberta legislation cuts to the chase and scars away any would-be claimants with its very name: Dependant Relief Act.
A dependent is defined as:
".... a child of the deceased who is 18 years of age or over at the time of the deceased’s death and unable by reason of mental or physical disability to earn a livelihood."
So ... good luck with that!
Similarly, the legislation in Saskatchewan, Manitoba and PEI.
Go see a lawyer in all cases but brace yourself for bad news. At the altar of freedom of contract ... err ... testamentary freedom, may be sacrificed Mom or Pop's moral duty to give you something!
The will might read that all goes to the local evangelical church or some children's hospital or even the YMCA - all worthy charities but when the will reads ZERO for a child, no matter how old or well off, it hurts and smacks of an immoral decision.
Things are different when a child has caused his parent/testator grief, done time in jail or some other evil deed. Then, under the guide of competent estate lawyers, the reasons for leaving a child out of a Will is set out in a secret memorandum to be brought out if necessary. Any lawyer with a hundred wills or so under his or her belt will have done one or more of these precious documents.
Milliken writes that even in BC:
"... the courts will not interfere if a person has a good reason to disinherit a child and properly documents those reasons."
Obviously, if a real relationship of financial dependency existed between the testator and the child, all Canadian provinces will allow the will to be varied.
The real problem is the in-betweeners, the middle-class son or daughter with a mortgage and maybe some child support to pay, who, for no apparent reason, finds out three things: Dad is dead; his old farmhouse is worth a half-million dollars, and he left it all to charity.
Bastions of Equity
Two Canadian provinces stand at the forefront of either common law mutiny or bastions of equity, depending on your perspective.
In both Nova Scotia and British Clumbia, the hurdle for a successful application to change a will is not set at the financial dependant height.
Lawyers, at least in BC, like to wave the Supreme Court of Canada case, Tataryn around as case that brought equity back from the grave.
First, consider §2 of the 2009 version of BC's Wills Variation Act, which gives no hint of equity glory:
"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."
In Tataryn , Justice McLachlin wrote that the British Columbia statute did not eliminate testamentary freedom; it limited that right. In Tataryn, this, even though the will included a clause saying why exclusions were made! McLachlin added that a will should be judged against:
"... what a judicious person would do in the circumstances, by reference to contemporary community standards.
"The language of the Act confers a broad discretion on the court. The generosity of the language suggests that the legislature was attempting to craft a formula which would permit the courts to make orders which are just in the specific circumstances and in light of contemporary standards... a moral duty approach.
"I cannot agree that the wording of the Act suggests a strict needs-based test. As noted above, the wording is broad and capable of embracing changing conceptions of what is adequate, just and equitable. The Act does not mention need.
"... an adult dependent child is entitled to such consideration as the size of the estate and the testator's other obligations may allow. While the moral claim of independent adult children may be more tenuous, ... if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made."
In Ontario, in a 2004 case (Cummings), Justice Blair of the Court of Appeal looked at the differences for claimants in Ontario compared to those in British Columbia; the application of Tataryn in Ontario. The Ontario legislation, the Succession Reform Act sets out, in paragraph after paragraph, things the judge should consider. Still, the conclusion of Justice Blair:
"When judging whether a deceased has made adequate provision for the proper support of his or her dependants and, if not, what order should be made under the Act, a court must examine the claims of all dependants, whether based on need or on legal or moral and ethical obligations."
Tataryn has certainly changed things in BC.
In Clucas, Justice Satanove tried to contain the law post-Tataryn:
"The test of what is adequate and proper maintenance and support as referred to in §2 of the Act is an objective test. The fact that the testator was of the view that he or she adequately and properly provided for the disinherited beneficiary is not relevant if an objective analysis indicates that the testator was not acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards.
"The words adequate and proper ... can mean two different things depending on the size of the estate. A small gift may be adequate, but not proper if the estate is large.
"Firstly, the court must consider any legal obligations of the testatrix of her spouse or children and secondly, the moral obligation to her spouse or children.
"The moral claim of independent adult children is more tenuous than the moral claim of spouses or dependent adult children. But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made.
"Examples of circumstances which bring forth a moral duty on the part of a testator to recognize in his will the claims of adult children are: a disability on the part of an adult child; an assured expectation on the part of an adult child, or an implied expectation on the part of an adult child, arising from the abundance of the estate or from the adult child’s treatment during the testator’s lifetime; the present financial circumstances of the child; the probable future difficulties of the child; the size of the estate and other legitimate claims.
"Circumstances that will negate the moral obligation of a testatrix are valid and rational reasons for disinheritance. To constitute valid and rational reasons justifying disinheritance, the reason must be based on true facts and the reasons must be logically connected to the act of disinheritance. Although a needs/maintenance test is no longer the sole factor governing such claims, a consideration of needs is still relevant."
Teeth of the Law
Some cases that have been resolved using Tataryn have been slam-dunks and are important only insomuch as they highlight the teeth of the law.
In Peden, a son was cut out of the estate because he was a homosexual. The court gave him his share back.
Similarly, in Prakash, a woman from Fiji followed her country of origin traditions and left nothing to her daughter but instead, all to her sons. Again, the British Columbia court righted the wrong even though "need is not a factor in this case".
How much goes to the claimant?
That's anyone's guess and the uncertainty leads to much litigation as estate lawyers exchange outrageous claims and play one-upmanship, while the estate melts into a glob of legal fees. One rule of thumb not without precedent (Viberg): the distribution set out in intestacy legislation.
In 2006, a law agency in British Columbia suggested that BC cut back on Wills Variation Act claimants who really did not have any financial dependancy; the rationale being to bring BC back into line with other Canadian provinces. But so far, no white smoke from the Vatican in Victoria as BC-ers continue to seek to liquid-paper valid wills and play with the Wills Variation Act, bringing tons of work to estate lawyers all in the name of a good cause: righting the ol' bastard's will.
Of course, as with almost all things that are left to the common law to resolve, and which are based on judicial discretion, the only person sure to make $350 an hour on the estate is a member of the Law Society.
- Clarke, G. and Graydon, J., "Moral Obligations Owed By Testators Form Basis of Dependants' Support", Lawyers Weekly, November 30, 2007, page 11
- Clucas v Clucas Estate 25 ETR 2d 175 (BCSC, 1999)
- Cummings v Cummings 235 DLR 4th 47 (2004, ONCA)
- Dependants Relief Act, Revised Statutes of Alberta 2000, Chapter D-10.5
- Duhaime, Lloyd, Do Not Contest: Wills That Retaliate
- Garrett v Zwicker (1976) 15 Nova Scotia Reports 2d 118
- Milliken, J., "Equity Under the Wills Variation Act", Bartalk (Canada Bar Association, British Columbia Branch), December 2007, page 17.
- Peden v. Peden Estate 2006 BCSC 1713
- Prakash v Singh 2006 BCSC 1545
- Succession Law Reform Act, Revised Statutes of Ontario 1990, Chapter S.26, §58
- Tataryn v Tataryn Estate (1994) 2 SCR 807
- Viberg v Viberg 2009 BCSC 27
- Wills Variation Act, Revised Statutes of British Columbia 1996, Chapter 490