“Survive By Five Days”

"Survive By Five Days"

S  10 of WESA provides for when a person does not survive a deceased person by five (5) days or longer when provided for in an instrument(  ie a will) is conclusively deemed to have died before the deceased persona for all purposes and thus will not inherit.

Todoruk v BC Land Title and Survey Authority 2016 BCSC 2241 when a married couple of 67 years died when one died on January 12 and the other died on January 17.

The issue before the court was the interpretation of the words ” survive by five days.”

[2]          The calculation of time is addressed in the Interpretation Act, R.S.B.C. 1996 c. 238 [Acf. Sections 25(1), (4) and (5) say as follows:

(1) This section applies to an enactment and to a deed, conveyance or other legal instrument unless specifically provided otherwise in the deed,  conveyance or other legal instrument.

(4)           In the calculation of time expressed as clear days, weeks, months or years, or as “at least” or “not less than” a number of days, weeks, months or years, the first and last days must be excluded.

(5)           In the calculation of time not referred to in subsection (4), the first day must be excluded and the last day included.

IF the court found that the second spouse survived the first spouse to die then her share passed to the husband. If it was found that she did not survive the husband by five days then her estate would be considered as tenants in common with his estate.

The court held that the second to die did in fact survive the first to die by five days, and that s 10 WESA  does not state clear days

Therefor the first and last days are included and amount to five days.

The reasoning followed a previous case interpreting survive by thirty days Re Day Estate 1982 BCJ 1288 which also said that part days are not to be counted.

Fertility and WESA

Fertility and WESA: Is This Reproductive Matter Property?

A deceased husband’s frozen sperm at a fertility centre was declared to be personal property under WESA and previous case law and thus could be inherited by the widow on an intestacy.

The court in KLW v Genesis Fertility Centre 2016 BCSC 1621 ordered to release of the frozen sperm to the widow as the sole beneficiary despite the deceased not having signed the required consent under the Assisted Human Reproduction Act and it’s  Regulations to create an embryo.

There was evidence that the wife and the deceased had spoken to a number of professionals of their plan to conceive a child even if he died.

The court held that the reproductive material which includes sperm, ovum and other cell or human g3ene or any part of them is  a product under WESA that can pass to beneficiaries.

The fertility centre did not oppose the application and  required  a court order to release the sperm without the proper consent of the deceased.

The court held to deny the wife the use of the reproductive material would be both unfair and an affront to her dignity.

Is the Reproductive Material Property?

[59]        In particular contexts, courts in various jurisdictions have held that human sperm or ovums stored for reproductive purposes are property: C.C. v. A. 1/1/., 2005 ABQB 219; J.C.M. v. A.N.A., 2012 BCSC 584; Lam v. University of British Columbia, 2015 BCCA 2; Yearworth v. North Bristol A/HS Trust, [2009] EWCA Civ 37; Kate Jane Bazley v. Wesley Monash IVF Pty. Ltd., [2010] QSC 118 (Queensland SCTD); Jocelyn Edwards: Re the Estate of the late Mark Edwards, [2011] NSWSC 478.

[60]        In C.C. v. A.W., the parties disputed access to twins born to C.C. through a donation of sperm from A.W. Each party also claimed the four fertilized embryos that remained in a Toronto clinic. A.W. refused to consent to the release of the remaining embryos to C.C. for her use in another attempt to become pregnant.

[61]        At paras. 20 and 21, the court found that A.W. had provided his sperm as an unqualified gift to C.C. to assist her to conceive children. The remaining fertilized embryos remained C.C.’s property. They were chattels she could use as she saw fit.

[62]        In J.C.M. v. A.M.A., the parties, during the course of their spousal relationship, each gave birth to one child using artificial insemination from sperm provided by a single donor. When the parties separated, they entered into a separation agreement that divided all joint property of their relationship. Through inadvertence, the separation agreement did not divide the 13 remaining sperm straws stored at Genesis. Madam Justice Russell concluded that the remaining sperm straws should be treated as property for the purpose of dividing them upon the dissolution of the parties’ spousal relationship. In reaching that conclusion, Russell J. relied primarily upon C.C. and the decision of the England and Wales Court of Appeal in Yearworth v. North Bristol NHS Trust, [2009] EWCA Civ 37.

[63]        In Yearworth, the Court held that stored sperm was property for the purposes of an action for negligent damage to property. The appellants were all diagnosed with cancer. They received treatment at a hospital operated by North Bristol NHS Trust and accepted advice that before undergoing chemotherapy, they could produce semen samples that the respondent would store for their future use. Before any of the appellants attempted to use the sperm, the hospital’s freezing system failed and the sperm perished.

[64]      The Court of Appeal began its analysis at para. 28:

28. A decision whether something is capable of being owned cannot be reached in a vacuum. It must be reached in context; and in this section of our judgment the context is whether an action in tort may be brought for loss of the sperm consequent upon breach of the Trust’s duty to take reasonable care of it. The concept of ownership is no more than a convenient global description of different collections of rights held by persons over physical and other things. In his classic essay on “Ownership” (Oxford Essays in Jurisprudence, OUP, 1961, Chapter V) Professor Honore identified 11 standard incidents of ownership but stressed that not all of them had to be present for ownership to arise. He suggested that the second incident was “the right to use” and he added, at p.116, that:

“The right (liberty) to use at one’s discretion has rightly been recognised as a cardinal feature of ownership and the fact that… certain limitations on use also fall within the standard incidents of ownership does not detract from its importance…”

We have no doubt that, in deciding whether sperm is capable of being owned for the purpose which we have identified, part of our enquiry must be into the existence or otherwise of a nexus between the incident of ownership most strongly demonstrated by the facts of the case (surely here, the right, albeit limited, of the men to use the sperm) and the nature of the damage consequent upon the breach of the duty of care (here, their inability to use it notwithstanding that this was the specific purpose for which it was generated).

[65]        In Yearworth, the Court recognized that historically, the common law did not allow any property interest in the human body, or body parts, living or dead. The Australian High Court in Doodeward v. Spence, (1908) 6 C.L.R. 406 created an exception to this rule when it recognized the right of ownership in a two-headed fetus preserved for commercial display as a curiosity. For the majority, Chief Justice Griffith held:

[W]hen a person has by the lawful exercise of work or skills so dealt with a human body or part of the body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it …

[66]        The Court in Yearworth held at para. 45(a) that developments in medical science “now require a re-analysis of the common law’s treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz. an action for negligence) or otherwise.”

[67]        At para. 45 (d), the Court stated that it was not content to see the common law in this area founded upon the principle in Doodeward, “which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of the human corpse. Such ancestry does not commend it as a solid foundation.”

[68]        At para. 45(f), the Court held that for the purposes of their negligence claims, the appellants had ownership of the sperm which they had generated and ejaculated for the sole purpose of its later use for their benefit. Although their rights to use the sperm were limited by legislation, no person other than the appellants had any right in relation to the sperm.

[69]        In Yearworth, at para. 45(b), the Court of Appeal emphasized the claim concerned products of a living human body intended for use by the persons whose bodies had generated them. The Court was not asked to consider whether there was any significant difference between such claims and claims in respect of donated products intended for use by others brought by the donors or by the donees of such products.

[70]        In J.C.M., Russell J., referring to Yearworth, commented at para. 63 that the need for the common law to keep up with medical science is compelling. At para. 69, she found that in the context of the dispute before her, the sperm was the property of the parties. Madam Justice Russell observed that the sperm had been treated as property by everyone involved in the transaction, including the donor, Genesis and the parties.

[71]        Equally, in the case at bar, [A.B.], Genesis and the petitioner all treated the Reproductive Material as property.

[72]        In Lam v. University of British Columbia, the Court of Appeal upheld the trial judge’s finding that frozen human sperm is property for the purposes of the Warehouse Receipt Act, R.S.B.C. 1996, c. 481 (“WRA”). The facts of Lam are similar to Yearworth. The respondent, Mr. Lam, was the representative plaintiff in a class proceeding against the University of British Columbia. Members of the class had cancer. Before undergoing radiation treatment, they stored their frozen sperm in the appellant’s freezer. As the result of a power failure, the stored sperm was damaged or destroyed.

[73]        In Lam, Chiasson J.A., at para. 51, considered the Court in Yearworth had taken the correct approach to the development of the common law in holding that developments in medical science required a re-examination of the issue of ownership of parts or products of a living human body. However, in concurring reasons for judgment, Bennett J.A., writing for herself and Frankel J.A., emphasized at para. 110 that in Yearworth, the Court was determining whether human sperm was property in a very narrow context, and was not determining whether sperm in other contexts, such as probate or matrimonial law, could be considered property.

[74]        At paras. 113 and 114, Bennett J.A. stated:

[113]   The nature and scope of property interests that a person can have in human sperm need not be decided on the facts of this case. This case, unlike for example, J.C.M. v. A.N.A., 2012 BCSC 584, does not deal with competing property interests in human sperm. This case considers whether Mr. Lam, a cancer patient, has ownership of the sperm he produced, such that he can contract for its storage to enable his personal use of the sperm at a later date. If so, the sperm is property, as something must be property if it is capable of being owned. There may also exist things that are property that cannot be owned, but that is not something that needs to be decided in the context of this case.

[114]   Not all of Professor Honore’s 11 incidents of ownership need to be present for ownership to arise (Yearworth at para. 28). Ownership of body parts must be contextual, and often limited by legislation because of public policy reasons. No one would argue that if a cancer patient cut her hair and stored it for the purpose of later making a wig after treatment that she did not “own” her hair in that context. On the other hand, legislation prevents the selling of sperm and organs such as kidneys, but does not prevent their donation. The prohibition on sale does not necessarily mean the legislation is inconsistent with ownership. It has provided limits to ownership in some contexts.

[75]        In concluding that each of the sperm donors had sufficient ownership of their stored sperm for it to be “property” and thus “goods” within the meaning of the WRA, Bennett J.A. applied the same analytical framework as the Court had adopted in Yearworth. The donors had ejaculated the sperm; contracted to store the sperm for their own future use; paid a fee for storage; and could consent to the sperm being tested. Further, they could terminate the storage agreement; could consent to the release of the sperm to their physician to be used by their spouse; and could exclude all others from using the sperm. Although legislation or the storage agreement precluded the donors from disposing of the sperm by leaving it to someone in their will or from selling the sperm, they nonetheless had sufficient rights in relation to their own sperm for it to be defined as property.

[76]        In Bazley v. Wesley Monash IVF Pty. Ltd., the applicant’s husband was diagnosed with liver cancer. Before his death, he provided a semen sample before undergoing chemotherapy. The respondent continued to store the semen samples following Mr. Bazley’s death. When the applicant requested that the respondent continue to store the sperm, a spokesperson for the respondent informed her that in the absence of specific reproductive and assisted technology legislation in Queensland, the respondent operated under national guidelines for the use of assisted reproductive technology. The guidelines provided that clinics must not store or use gametes from deceased persons unless there was a clearly expressed written directive from the donor consenting to the use of the gametes. Mr. Bazley had died without providing such a direction. The respondent informed the applicant that in the absence of such a directive, it was prevented by the guidelines from continuing to store Mr. Bazley’s sperm or using it to procure a pregnancy.

Wills Variation and Long Marriages

Wills Variation and Long Marriages

Ciarniello v James 2016 BCSC 1699 is a good example on how the court treats the division of estate assets  at the end of  long marriages when the survivor brings a wills variation action on the basis that she was not adequately provided for in her late husband’s estate.

The parties were together 39 years and had two children of their 28 year old marriage. It was a second marriage for both.

The deceased husband also had three children from a previous marriage.

The testator died at age 80 years and held assets in his name of about $11.3 million dollars.

His surviving spouse was aged 62 and owned about $7.2 million of her own assets but was essentially “land rich and cash poor” and was draining her saving each month to get by.

There was  evidence as to the valuations of each parties assets.

His will left his estate equally to his five children, other than his half in the family home which he left to the plaintiff.

there was evidence that the deceased sought and relied upon an estate plan but the court found that the plan was outside what was reasonable for the  long time spouse.

The court varied the will by % 25 of the residue to the surviving spouse plus the deceased’s  %10 interest in a privately  owned company and the remaining %75 to  be divided equally amongst the five children.

The court reasoned that the plaintiff was entitled in a notional separation had it occurred immediately prior to the testator’s death, and concluded that the deceased did not make adequate provision for his surviving spouse, and thus the variance. The notional separation defines the minimum acceptable level of what is adequate, just and equitable.

Under the will, the plaintiff did not receive one half of the family property and the testator clearly did not discharge his legal duty to her.

The Court:

[73]         The legal entitlement of the spouse immediately before the death of the testator is the relevant time, that is, the time of the notional separation, to determine the extent of the testator’s legal duty.

[74]         As Dr. Ciarniello died on April 28, 2013, the Family Law Act, S.B.C. 2011, c. 25, should govern the analysis. Given the provision of the Divorce Act and the Family Law Act, I think that the plaintiff at a time just prior to the death of the testator would likely be entitled to an equal division of family property. While I doubt that a family law analysis would have resulted in an order for spousal support, given the condition of the testator at that time, the deceased’s legal obligation would be to provide 50% of the family property.

[75]         Assuming a notional separation of the parties immediately before death, I find the relevant values at that time for the net assets of the plaintiff were $7,194,980 and for Dr. Ciarniello’s holdings $11,342,597. I have accepted the valuations in the plaintiff’s chart I set out above. I have considered the minority interest in Nicoson at the mid-point between the two valuations.

Wills Variation-Assets Passing Outside of the Estate

Assets Passing Outside of the Estate

generally speaking, claimants do not have a claim against assets that pass “outside” of the estate in wills variation claims. The exceptions are if the transfer is tainted and legal remedies such  as resulting trust, undue influence and lack of mental capacity are available.

 

Assets Passing – Probably most people in North America die holding assets that pass from their name to others or their estate that pass both ” inside” and “outside” of the estate.

A deceased’s will only distributes assets that were personally owned by the deceased at the time of his or her death, and these assets are said to pass through, under  or “inside” of the deceased’s estate.

Many other assets owned by the deceased may pass “outside” of the deceased’s estate by mechanisms independent of the will.

In a wills variation action brought under section 60 WESA, a claim is limited to assets in British Columbia that pass “inside of the estate” pursuant to the will of the deceased.

If the deceased is not have a will, then there cannot be a wills variation claim and the assets will pass as an intestacy.

Similarly, there is no wills variation claim in the following assets owned by a deceased:

1.       Property owned as a joint tenant with a right of survivorship with someone else;

2.       named beneficiaries under an insurance policy;

3.       proceeds from pension plans with named beneficiaries;

4.       trusts;

5.       gifts made during the lifetime of the deceased; 

The list may not be exhaustive but it includes probably a majority of assets owned by the majority of Americans and Canadians that pass upon a death.

For example, most spousal couples likely own their property in joint tenancy with a right of survivorship, so that upon the first of the owners to pass, the property automatically goes to the survivor and does not form part of the assets that pass under the will.

As previously mentioned, it is not possible to bring a wills variation claim against a proper joint tenancy.

Court Discretion In Wills Variation Claims

Court Discretion In Wills Variation Claims

In wills variation cases now brought under S. 60 WESA , the judge has “entire discretion” in deciding pro or against a claimant on its findings of fact.

In Swain v Dennison 1967 SCR 7 the Supreme Court of Canada held that the jurisdiction of the court in such claims is statutory, not founded in equity and the entire jurisdiction of the court is discretionary.

Within reason the court can make findings of fact in its discretion which makes it very difficult to appeal since the appeal court would have to substitute its own findings of fact in place of the trial judge unless the appeal court finds that the trial judge did not give sufficient weight to relevant factors.

The BC Appeal court in Kish v Sobchak and Doyle 2016 BCCA 65 stated the following about the courts proper use of discretion:

33.   The line between the exercise of judicial discretion and the finding of facts is not easy to enunciate. For purposes of this case, I respectfully adopt Lord Bingham’s description of judicial discretion given in The Business of Judging: Selected Essays and Speeches(2000):

According to my definition, an issue falls within a judge’s discretion if, being governed by no rule of law, its resolution depends on the individual judge’s assessment (within such boundaries as have been laid down) of what it is fair and just to do in the particular case.

He has no discretion in making his findings of fact. He has no discretion in his rulings on the law. But when, having made any necessary finding of fact and necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that embarks on the exercise of a discretion.

I believe this definition to be broadly consistent with the usage adopted in statutes. [At 36; emphasis added.]

Lord Bingham also explains that fact-finding is not “discretionary”, although some judges have described it as such. In his words:

… it is one thing to say that the responsibility of finding the facts is entrusted to a particular person or body, be he judge, arbitrator, official or public authority, and that such finding is to be treated as conclusive or virtually so. But it is quite another to describe that function as discretionary. It is, I suggest, nothing of the kind. In finding the facts the judge’s job is to consider all the conflicting evidence this way and that and decide as best he can where the truth lies. It is very much the task performed, for instance, by the historian or the journalist as part of his stock in trade. The judges of course are constricted by formalities and rules of evidence which do not afflict them. On the other hand, he has powers of compelling testimony which they would envy. It is none the less essentially the same function. Yet to say of a historian or journalist that he exercised a discretion in reaching conclusions of fact would, I suggest, be regarded as a libellous. The judge must exercise judgment, not discretion, in finding the facts, and it is usually the most difficult and often most exacting task which the civil trial judge has to undertake. [At 37; emphasis added.]

Wills Variation: BC Court Overturns Will

Court Overturns Man's Will on Moral Grounds

Court Overturns

The British Columbia Court over turned and varied a will where his four daughters had been left with nothing.

William Werbenuk died more than two years ago with just enough money in the bank to pay for his funeral. The 86-year-old widower’s will gave all assets to his only son, Randall, and left his four daughters with nothing.

This week, a B.C. Supreme Court judge overturned the Pentiction, B.C., man’s will, saying his estate should be distributed to all of the man’s children based on “contemporary moral standards” – a move that has sparked much debate about a judge’s right to change a person’s will after they die.

Justice Randall Wong, ordered the estate, including Mr. Werbenuk’s Saskatchewan farmland and a valuable and extensive violin collection, be split according to need among Mr. Werbenuk’s son and four daughters, three of whom testified having endured years of abuse at the hands of their father.

The daughters have a “valid moral claim to share in the family wealth,” Judge Wong ruled.

According to the ruling, Mr. Werbenuk physically and emotionally abused his daughters. As punishment, their father regularly forced them to wash his feet, the women testified – a detail that helped lead Judge Wong to decide that the father was a “hard and rigid man who ruled his family, and especially the women, with an iron fist.”

Some criticized Judge Wong’s decision as a threat to “testamentary autonomy,” or, in other words, a person’s right to give their assets to whomever they want – a long running and divisive debate among B.C.’s litigators and defenders.

“There are lots of people in the bar in B.C., myself included, who think people should be allowed to give their stuff to whoever they want it to be given to,” said Bruce Hallsor, partner at Crease Harmon LLP in Victoria a d the immediate past president of the Canadian Bar Association’s national section on wills and trust.

“This gentleman, in this particular case, seems to be of unfortunate temperament and old-fashioned. The day before he died, he could have given everything he owns to his son.”

In British Columbia, a parent has a moral obligation to provide for their children after death under the Wills Variation Act, said Trevor Todd, a lawyer who exclusively defends disinherited people. It’s also the only province in which a non-dependent adult child can challenge his or her deceased parent’s will.

In most other provinces, only dependents and spouses can appeal a will before a judge through a similar wills variation act, he said.

The Wills Variation Act has helped many adult children who feel they have been unjustly denied their parents’ wealth after death, said Mr. Todd.

“I see lots of cases like that, where the children are damaged goods,” he said. “What a lot of these cases are is the last kick at you from the grave, the last insult.”

Judges are often sensitive to that and they do need to make judgments on individual cases because they’re all so different, he said.

A parent may explain why children were disinherited, but that’s only one side of the story, said Mr. Todd.

“Sometimes you’ll see wills where a father will be disinheriting his daughter, saying ‘She hasn’t called me in 30 years,’ When you tell the daughter dad says he hasn’t seen her, that they’re estranged, she might say ‘God damn right we are, he molested me,” Mr. Todd said.

Randall Werbenuk’s lawyer, Charles Albas, said his client is “devastated” by the judge’s ruling. He felt he was following his father’s wishes and that his estranged sisters were exaggerating.

Judge Wong empathized with the harsh life the daughters had been subjected to and Randall Werbenuk has to accept that, Mr. Albas said.

“[My client] is of the opinion that the judge was unduly hard on him. He basically did what his dad told him and he had a reasonable expectation that in doing that, he would be rewarded [in the will],” he said.

Randall Werbenuk will now receive 20% of his father’s assets.

His lawyer is considering an appeal.

– National Post

S 151 WESA – Court Allows Applicant to Sue as Executor

S 151 WESA - Court Allows Applicant to Sue as Executor

Werner v. McLean 2016 BCSC 1510 granted relief under S 151 WESA that the applicant be authorized to bring court action in the name of and sue on behalf of the personal representative of the estate as executor.

The court approval was in order to litigate whether an asset was or was not an estate asset. The court found that the applicant had satisfied the required criteria under S 151 WESA.

An application in the alternative that the executor be removed and the applicant substituted as executor  was dismissed on the basis that the executor had not acted improperly.

The court stated:

[9]             On an application for removal of a trustee, the court’s focus is on the welfare of the beneficiaries of the trust estate: Letterstedt v. Broers (1884), 9 App. Cas. 371 (P.C.); Conroy v. Stokes, [1952] B.C.J. No. 111 (C.A.). Not every act of misconduct should result in removal. The question is whether the acts or omissions endanger the trust property or show a want of honesty or proper capacity to execute the duties or reasonable fidelity: Letterstedt, at 386.

Section 151 of the Wills, Estates and Succession Act provides, in relevant part, as follows:
(1)  Despite section 136 [effect of representation grant], a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative of the deceased person
(a)  to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or
(b)  to obtain damages for breach of a right, duty or obligation owed to the deceased person.
…
(3)  The court may grant leave under this section if
(a)  the court determines the beneficiary or intestate successor seeking leave
(i)   has made reasonable efforts to cause the personal representative to commence or defend the proceeding,
(ii)   has given notice of the application for leave to
(A)  the personal representative,
(B)  any other beneficiaries or intestate successors, and
(C)  any additional person the court directs that notice is to be given, and
(iii)   is acting in good faith, and
(b)  it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceeding to be brought or defended.
(4)  On application by a beneficiary, an intestate successor or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

Adoption Purposes

Adoption Purposes

Adoption is for all purposes. I advised a legal enquiry today that he could not claim against the estate of his natural father (“birth parent”) since he had been adopted by another party and that for estate claims, his adoption was for “all purposes”.

Section 3 WESA re Adoption states:

Effect of adoption

3  (0.1) In this section, “pre-adoption parent” means a person who, before the adoption of a child, was the child’s parent.

(1) Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

(2) Subject to subsection (3), if a child is adopted,

(a) the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent, and

(b) a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.

(3) Adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession under this Act.

In other words on an intestacy an adopted child may not inherit from his or her birth parent and a birth parent may not inherit from a child that has been adopted , with the exception of step-parent adoptions.

Nothing however prevents the right of both children and parents to leave a gift by will to each other irrespective of the adoption.

This section also precludes a child who has been adopted out from bringing a wills variation claim ( S 60 WESA) against the birth parent’s estate.

Disabled Adult Succeeds Wills Variation

Disabled Adult Succeeds Wills Variation

Willott v. Willott Estate 1997 CarswellBC 2016, [1997] B.C.J. No. 2073, 20 E.T.R. (2d) 211 is a 1997 wills variation action where a deceased parent’s estate was required to pay additional monies to a disabled son who unable to work, survived on a small disability pension due to his mental illness.

The estate was approximately $500,000 and was left solely to the sister of the deceased.

The disabled son succeeded in his wills variation claim ( now section 60, WESA)  with the court finding that state paid disability benefits are the bare minimum and that a parent still has a moral obligation to provide more for the child’s benefit.

THE COURT STATED:

73      Therefore, I find that a judicious testatrix, as part of her consideration of what is adequate support for an adult child who is incapable of supporting himself due to disabilities, may take into account the provisions made by the state for that person. That is the starting point. The state provides for basic needs. But the state also is willing to provide for those needs without deduction while allowing for some “extras” for the disabled person. Thus arise the exemptions in the Disability Benefits Program Act and the Regulations to that Act.

74      I find on the whole of the evidence that Iris Willott did not make adequate provision for the proper maintenance and support of her son, and did not discharge her moral obligation to him. Lot 1 will provide accommodation for him should he chose to live there or, if he chooses to sell that property, I find it will provide him with enough money to purchase other suitable accommodation. His benefits under the regulations to Disability Benefits Program Act will cover his house insurance, taxes, fuel, water, hydro, garbage and basic telephone expenses (s. 5 Schedule A). In addition, benefits will provide him and his wife with medical and dental coverage, eye care, prescriptions and home support. But the monthly amount of $608 which he will then receive (assuming he and his wife are together) is not sufficient, I find, to maintain him to the standard which was reasonable given his own circumstances at the time of his mother’s death and the other factors the court is required to consider when dealing with Wills Variation Act actions, including the size of the estate.

75      I find that Mr. Willott should be provided with a further lump sum which (together with the remainder of the cash bequest which he received under the will) will enable him to purchase a reasonably reliable vehicle and certain household items which he requires. Many needs for the later will be satisfied by his receipt of the balance of Iris Willott’s effects which all the defendants agree he should have. I find the additional amount that Mr. Willott should receive is $20,000. If Mr. Willott, with the assistance of his wife and others, plans efficiently, this sum should also suffice to cover his initial vehicle insurance costs as well as living and other transitional expenses which he will incur over the one to three months which I estimate will be the time during which he will not receive benefits due to receipt of funds from the estate. Should Mr. Willott choose to sell the property he can and should plan the sale and any purchase of other property to minimize the time during which he will not receive benefits.

76      In addition, Mr. Willott should have the benefit of a trust as contemplated by the Disability Benefits Program Act and Regulations. This trust shall be in the amount of $100,000. Mr. Willott shall receive the income from this trust to the maximum allowed under the regulations. The balance of the annual trust income, after payments of all costs related to the administration of the trust, shall be paid to the Society, from whose share of the estate the trust shall be created. Upon Mr. Willott’s death the capital of the trust shall revert to the Society. At present this means Mr. Willott will receive from the trust a maximum of $5,484 per year or $457 per month in addition to the $608 in monthly benefits which he receives. If necessary, counsel may speak to the question of the appointment of an appropriate trustee.

77      The trust shall be created from funds from the sale of Lot 102 which shall be listed for sale forthwith. Mr. Willott may call for the transfer of Lot 1 and the balance of the funds owing directly to him at any time from the date of this judgment but not later than three months after the establishment of the trust. Until that time, he shall be entitled to interest on the funds owing directly to him in the amount of 5% per year payable at the time he receives the funds. Should Mr. Willott chose to defer the transfer of Lot 1 he will not be entitled to any accounting with respect to the income from it, nor shall he be responsible for any of the expenses relating to it.

78      The additional lump sum payment shall fall rateably on the estate. Mr. Onwood’s share of the estate shall be satisfied next after that of Mr. Willott. Thereafter the congregation’s share of the estate shall be satisfied, following which the Society shall receive its share.

Will Variation: Daughter Awarded Entire Estate

Will Varied to Give Daughter Entire Estate

Hagen-Bourgeault v. Martens 2016 BCSC 1096 varied a will (S. 60 WESA) to give a 25 year old daughter with two young children on social assistance, the entire estate of $2,200 per month until 2025, instead of her husband of two years who was well off but left the entire estate under her will.

The court found that the husband beneficiary of the estate had was financially independent and had limited legal or moral entitlement to the estate.

The daughter in turn had great financial need.

The Court Stated:

The leading Canadian decision on variation principles is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807; 93 B.C.L.R. (2d) 145. In delivering the Court’s unanimous judgment, McLachlin J., as she then was, confirmed that the language of the WVA confers on the trial court a broad discretion to make orders that are just in the specific circumstances of a case, and in light of contemporary standards. The WVA is to be seen as imposing limitations of testamentary authority. At a minimum, survivors are not to be left destitute, such that they will impose a burden on the state; but what is to be considered “adequate, just and equitable” is not limited to need alone.

Entire estate

[20]         Tataryn further discusses the means by which competing claims are to be assessed:

How are conflicting claims to be balanced against each other?  Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator’s life — i.e., claims based upon not only moral obligation but legal obligations — should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority. In doing this, one should take into account the important changes consequent upon the death of the testator. There is no longer any need to provide for the deceased and reasonable expectations following upon death may not be the same as in the event of a separation during lifetime. A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes. Any moral duty should be assessed in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children.

[21]         In my judgment, the needs of the plaintiff, in relation to the very modest size of the estate, completely outweigh all claims of Mr. Martens. Mr. Martens, though he was no doubt the loving spouse of the deceased, had only a short relationship and demonstrates no financial dependence upon her during their lifetime. The amount of the structured settlement fund did not increase in value during their relationship. He has no claims founded in unjust enrichments. In the circumstances, he would not have been entitled to spousal support on the breakup of their marriage. His legal and moral entitlement to a share in Michelle’s estate is consequently limited, at best. Furthermore, the size of the estate is so modest that in their entirety, the structured settlement proceeds would appear to be sufficient only just to lift the plaintiff and her two dependent children out of poverty, and then only for so long as the fund lasts.

[22]         In the present case it does little violence to the testator’s intentions to make an immediate full reapportionment in the plaintiff’s favour. It is a fair inference, from the evidence, that the testator’s decision to leave to Mr. Martens’ discretion the amount of support to be paid to the plaintiff, when the will was made in 2012, may have reflected some hesitation as to the plaintiff’s ability to exercise good judgment. Whatever qualms may have led the testator to structure her will in this fashion, as opposed to leaving an outright gift to the plaintiff, there is no evidence now which points to any such concern. Indeed, the mechanism of the structured settlement itself would serve as a check on the funds being squandered. The plaintiff appears, on the evidence, to have survived a difficult adolescence and now to be doing her utmost to see to the need of her children, in very challenging circumstances.