The Case

On New Years Eve of 2010, the BC Supreme Court ordered one of the largest awards under the Wills Variation Act.

The mother’s last Will and testament was made 18 years before her death. The mother’s estate was valued at approximately $20-million, with most of the value coming from shares of a privately held family company. The daughter was the only child of the mother. The husband had 4 children from a previous marriage.

Upon an application under the Wills Variation Act, the court found that the provision made for the daughter in the Will fell below the standard of what a contemporary judicious parent would do in all of the circumstances. The court varied the Will to give the daughter an additional $5.5-million. The remainder of the estate went to the husband.

The court considered the following factors:

• the abundance of the mother’s wealth and her lavish standard of living;
• the value of the assets passing to the husband outside of the estate and his independent wealth;
• what the mother knew about her daughter’s comparatively inferior financial circumstances,
• the significant financial setback brought on by the demise of the daughter’s business;
• the daughter would not inherit from her father under his Will;
• the mother’s promise to pay for her grandchildren’s education;
• the daughter’s bona fide expectations that she would be securely provided for by her mother;
• the devotion and love showed by the daughter to her mother; and
• the value of the testamentary gifts to the daughter.

The Law

The Wills Variation Act is unique to British Columbia. The act provides a spouse or child may challenge the provisions of a Will if the Will does not make adequate provision for the proper maintenance and support of the spouse or children. If the court finds that adequate provision was not made, then the court may vary the will. The court can order that provision be made for the spouse or children that the court deems is adequate, just and equitable in the circumstances.

Unlike most other provinces, adult children who are independent of their parents can apply for a variation under the Wills Variation Act.

Implications

This case shows the importance of proper estate planning. The lengthy litigation and trial could have been avoided had the mother updated her will or provided for inter vivos transfers or trusts. This case is also an example of the unpredictability of how one parent will treat a child after the death of the other parent.

Click here to view the full case.

More Information

For further information please contact Andrew MacKay or Emily Clough, who were counsel for the daughter.