Canada: What Obligations Are Owed By A Testator To A Deceased Person's Estate?

In the Court's determination of a wills variation claim and what is "adequate, just and equitable", the Court will consider legal and moral obligations owed by the Deceased to the claimant.  If the claimant passes away after the deceased's death, does a legal or moral obligation remain?

Firstly, there is the issue of whether the claimant's estate can continue the claim after the claimant's death. This was dealt with in Currie Estate v Bowen, [1989] B.C.J. No. 250 ("Currie"), which was decided under the former Wills Variation Act, R.S.B.C. 1979, c. 435. Hutchinson L.J.S.C. held as follows:

"I am satisfied that the Wills Variation Act granted Patience Currie the right to claim an equitable share in the estate of her husband. Because the right to advance this claim was granted by statute, is not founded in tort and as it is broader than a claim for mere support or maintenance, it follows that the cause of action survives the death of Patience Currie, it is not "actio personalis". This right vested in her at the time of Dennis Currie's death (Walker v. McDermott, [1931] S.C.R. 94, [1931] 1 D.L.R. 662 [B.C.]). While the statute does not explicitly authorize the claim to be made on her behalf by a personal representative as it did under s. 13 of the Testator's Family Maintenance Act, I find the words in s. 2, "in an action by or on behalf of the wife" authorize the commencement of this action by personal representatives."

This statement from the British Columbia Supreme Court in Currie is important as it highlights that a claim for wills variation is broader than a claim for mere support. This is in contrast to other provinces in Canada where the dependant's support regime is based upon the claimant's need for support or maintenance. In such provinces, the question of obligations owed to a deceased person's estate would be considered differently.

Currie was followed in the case of Lawrence v McGavin, [1992] B.C.J. No. 483 ("Lawrence"). In Lawrence, an application was brought to dismiss an action commenced on behalf of a deceased wife to vary the provisions of her late husband's will. The husband's will had divided the residue of his estate between his wife and son, however his wife's share was on condition that she survive him by thirty days and that she take her share. The wife died approximately forty days after the husband, but she was never able to take her interest under her husband's estate while she was alive. The action was commenced to vary the will to give the wife a greater share and remove the conditions.

With respect to standing, Spencer J. in Lawrence cited the Currie decision in stating that the question of standing with respect to deceased claimants had been decided. Interestingly, Spencer J. added "I do not wish to be understood as necessarily concurring with that decision" (Lawrence, at paragraph 5).

As Lawrence was decided prior to Tataryn v Tataryn Estate, [1994] 2 S.C.R. 807 ("Tataryn"), the seminal wills variation case in British Columbia, the Court considered the test in Walker vs. MeDermott (1931) S.C.R. 94. It was found that the wife had been destitute and ill, and that the deceased was aware of her serious illness. Although the wife had been living with another man before the deceased's death, that man had not been providing for her and the legal husband's obligation remained. However, the Court held that facts arising since the date of the testator's death could be taken into account. Those circumstances included that the wife had died shortly after her husband. On this point, Spencer J. stated, "Any variation of [the testator's] will must be governed so that it does not simply contribute to the corpus of [the deceased claimant's] estate for the benefit of her heirs whom the testator had no intent to advance and who he owed no duty" (Lawrence, at paragraph 8). Therefore, it was found that a life estate to the wife would have been a proper variation if she was alive, but now that she had died, "such an order would be academic."

In Tyas v Tyas Estate, [1994] B.C.W.L.D. 1053 ("Tyas") released a few months prior to Tataryn, a husband had been excluded from his wife's will. While the husband was alive at the time of trial, he was incapable and was represented by the Public Guardian and Trustee ("PGT") as his committee. It was noted in Tyas that the date for a determination under the Wills Variation Act of whether or not adequate provision had been made for the maintenance of the applicant is the date of the testator or testatrix's death, but, the Court should take into consideration the circumstances existing and reasonably foreseeable to the testator as at that date (Tyas, at paragraph 14, citing Landy v. Landy et al (1991) 44 E.T.R. 1 (B.C.C.A.)). Further, it was noted that the Court of Appeal in Landy provides that a substantial change in the circumstances of a potential claimant between the testator's death and trial may be taken into consideration.

In Tyas, the Court considered that:

  1. The deceased claimant and the testator had kept their finances separate;
  2. Each spouse saw their own descendants as beneficiaries of their own estates; and
  3. The Plaintiff was able to meet his day-to-day needs from his pension without drawing on his capital.

Boyle J. held that the husband's circumstances were readily and reasonably foreseeable, and that there was "no moral blemish" and "no failure of duty" in his exclusion from the testatrix's estate. It was ordered that a small amount, $15,000, which was just under 8% of the estate, be held in trust for the life of the plaintiff to be used at the PGT's discretion for the plaintiff's reasonable comforts.

This issue was considered again in Pelletier v Erb Estate, 2002 BCSC 1158 ("Pelletier"). In Pelletier, a father had left his estate to his two sons and had excluded his two daughters, one of which passed away after her father's death but before the date of trial. Justice Drost considered the comments of Justice Spencer in Lawrence, stating:

"With respect, I doubt that Mr. Justice Spencer intended his words to be taken as a statement of law applicable whenever a dependant spouse or child has died prior to the determination of a variation action. Each case must be decided on its own facts and merits." (Pelletier, at paragraph 63)

Justice Drost held that the father's estate be divided equally between the three living children and the deceased child's estate. While it was not explored in the reasons, it is worth noting that the deceased daughter had a child, who would presumably benefit from her share.

The most recent decision where this issue was raised is the case of Enns v Gordon Estate, 2018 BCSC 705 ("Gordon Estate"). In Gordon Estate, a wills variation claim had been commenced by two daughters of the deceased who had both experienced varying degrees of estrangement with the testator, their mother. The Court cited Pelletier for the principle that death does not disentitle an estate to relief on a wills variation claim, but it is a circumstance that may be considered (Gordon Estate, at paragraph 62). However, while the living daughter was awarded a portion of the deceased's estate, the deceased claimant's estate was not. The decision does not provide that the lack of award for the deceased daughter's estate was based on the fact that the claimant had died. At various points in the decision, it is noted that there was a lack of evidence on behalf of the deceased claimant's circumstances, particularly with respect to any mitigation of the reasons for her estrangement from the testator. It should also be noted that in Gordon Estate the testator had left her entire estate to charities and the two claimant daughters were the only individuals to whom the deceased owed a moral duty.

There is certainly no clear answer with respect to a deceased claimant's entitlement on a wills variation claim. As expressly stated in Pelletier, disputes of this nature will necessarily be considered on a case by case basis. Based on the available case law, it can be expected that a death (or severe illness) of a claimant that was reasonably foreseeable will have a stronger impact against the quantum of a will variation claim by an estate. While cases such as Lawrence and Tyas have shown resistance to making such variations in favour of an estate, more recent, post-Tataryn cases, such as Pelletier and Gordon Estate, have seemingly treated deceased claimants similarly to living individuals.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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