The British Columbia Supreme Court recently handed down a
Wills Variation Act ("WVA") decision in
McEwan v. McEwan, 2014 BCSC 916.
This case involved a grandfather ("Angus") who left his
entire estate (the "Estate") to his two granddaughters,
overlooking his only son ("Malcolm"). The Court
varied Angus' Will and award Malcolm a portion of the
This case was decided under the old WVA, but the
relevant sections remain unchanged in the new Wills, Estates
and Succession Act. As with any WVA case, the
Court considered whether to use its discretion to vary the Will and
make a provision that is adequate, just and equitable in the
circumstances for the spouse or child.
In this case, the Court made a variation in favour of the
son. Despite years of estrangement between Angus and Malcolm
and Angus' clear intention to exclude Malcolm from his Will,
the Court ordered that Angus' Estate be divided with 50% going
to Malcolm and 25% each to the two granddaughters. The Court
arrived at this decision by undertaking the Tataryn
analysis and considering:
the will-maker's legal obligations to
support a spouse and minor or dependent children; and
the will-maker's moral obligations toward
his or her spouse and children (including adult children).
The first factor is not relevant in this case as Malcolm and the
granddaughters are all adults. The second factor is relevant,
but for Malcolm only. Angus would not owe moral obligations
to his grandchildren for the purposes of the WVA because
they do not have standing to bring a claim under the
While Angus and Malcolm were estranged at the time of Angus'
death, their estrangement had only began in the past decade or so,
due to an antagonistic relationship between Malcolm and Angus'
second wife (who predeceased Angus, unbeknownst to Malcolm).
In the last months of Angus' life, Malcolm expressed a
wish to see him but Angus turned him away.
The Court found that, given how the estrangement arose, it did
not justify Angus disinheriting his son and, therefore, the
circumstances did not negate Angus' moral duty to Malcolm.
Thus, the Court found that the Will did not make an adequate
provision for Malcolm.
The case also involved a dispute over whether an investment
account was a gift to the two granddaughters or part of the Estate.
The investment account, at the time of trial, was
significantly larger than the Estate. Angus had added his
granddaughters' names to the account four months prior to his
death. To determine whether the account was a gift or part of
the Estate, the Court considered the Pecore case, which
stands for the proposition that where a gratuitous transfer is made
(as was the case here), there is a presumption of a resulting
trust. The presumption is rebuttable where the recipient of
the gift can demonstrate that a gift was intended. In this
case, the Court held that the granddaughters successfully rebutted
the presumption by demonstrating (through the testimony of the
account manager who met with Angus to make the account change)
Angus' intention to make a gift.
This case is a an interesting example of how an estrangement
will not necessarily negate the will-maker's moral obligations
to a spouse or children. As with any case, everything turns
on the facts.
Thank you for reading! And thank you to Cheryl Kornder for
assisting in drafting this blog post.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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