Geluch v Geluch Estate, 2019 BCSC 2203 [Geluch] is a favourable plaintiff's case where the court determined that the disability of the plaintiff would justify a variation of the will. The plaintiff is a developmentally disabled adult with multiple health complications. The court held that the $15,000 bequest to her fell below the standard of a judicious parent, and that a variation was justified which would result in her receiving the residue of the estate.
The Law
The leading authority on wills variation in British Columbia is Tataryn v Tataryn, [1994] 2 S.C.R. 807 [Tataryn].
In cases decided after Tataryn, the court considers a number of factors as set out in Dunsdon v Dunsdon, 2012 BCSC 1274:
[134] In the post-Tataryn era, the following considerations have been accepted as informing the existence and strength of a testator's moral duty to independent children:
- relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
- size of the estate;
- contributions by the claimant;
- reasonably held expectations of the claimant;
- standard of living of the testator and claimant;
- gifts and benefits made by the testator outside the will;
- testator's reasons for disinheriting;
- financial need and other personal circumstances, including disability, of the claimant;
- misconduct or poor character of the claimant;
- competing claimants and other beneficiaries:
(citations omitted).
(emphasis added)
In the case of Barnsley v Barnsley, [1996] BCJ No 2621, Shabbits J. said:
27 The testator's other three children are of good health. They are financially independent. They were close to the testator. All received some advances from the testator during his lifetime. The testator's two oldest children, in turn, financially assisted him when he was in need. The testator's making provision for them in his will is just and equitable. The testator's disinheritance of Sarah is not. The testator's decision to disinherit Sarah fell below his obligations to her as defined by reference to moral norms. The application made on Sarah's behalf must succeed.
28 All four of the testator's children have a moral claim on his estate. At the time of the testator's will and death, none of the four children were financially dependent on him. Although Sarah is supported by the state, that support is not guaranteed. Neither is the income or support enjoyed by the testator's other three children. Nevertheless, an "adequate, just and equitable" order requires that Sarah receive more than the other three of the testator's children. Sarah's needs are greater. She did not receive the benefit of any advances during the testator's lifetime.
In Newstead v Newstead Estate, [1996] BCJ No 256, Boyd J. wrote:
[86] I have held that the testator failed to discharge his moral obligation to each of his children in distributing his estate in the fashion set out in his will and that accordingly the will must be varied and awards made to ensure they are each adequately provided for. While Sherryle is clearly disabled by virtue of her mental handicap, both Martin and Byron suffer some features of disability and illness. Martin survives on federal and provincial handicapped benefit income assistance, supplemented by his wife's small salary. Byron is functionally illiterate and his prospects of earning anything other than minimum wage salary, if that, are questionable. Neither has any savings or substantial assets. Of the three, all but Martin will likely enjoy a normal life expectancy. While there is some issue concerning Martin's precise life expectancy, the medical evidence was at least in agreement that his prognosis is extremely guarded and the range falls somewhere between 3 to 8.5 years.
In Deutschmann (Guardian ad litem of) v Fallis, 2010 BCSC 2031, Voith J. wrote:
[45] In this case the deceased had a moral obligation to provide for all of his children. His moral obligation to the plaintiff, as a result of her disability, was greater than that owed to his adult independent children. The deceased recognized the fact that he had a moral duty by giving the plaintiff a life estate in part of the Property and dividing the Reside equally among his independent adult children. The deceased did not, however, fully discharge that moral duty to the plaintiff. As soon as she became unable to take care of herself, she was deprived of any further benefit in her father's estate. When the plaintiff left the Property, her need for ongoing support from her father did not end. Instead, the deceased had a continuing moral duty to the plaintiff, which he initially recognized, but which he failed to give full effect to. The reasonable judicious parent of a disabled child who has no independent means of support, apart from government assistance, would have made some ongoing provision for that child. There are no circumstances in this case that would negate or obviate that moral obligation. Instead, an objective and contemporary view of what is adequate and proper maintenance and support would have provided Ms. Deutschmann with assistance once she was no longer able to continue to reside in the Property.
In Geluch, Francis J. said:
[167] There have been a number of wills variation cases that have applied the Supreme Court of Canada's reasoning in Tataryn to claims brought by disabled adult children of a will-maker. These cases most often arise in circumstances where a will-maker erroneously believes that their moral obligation to provide for a disabled adult child is vitiated by the financial assistance the child receives from the state. This is not the law in our province and, in most cases, a disabled adult child of a will-maker has a moral entitlement to receive provision from their deceased parent's estate notwithstanding their entitlement to government benefits: (citations omitted).
(emphasis added)
Conclusion
If you have had a loved one recently pass away and you are a disabled adult child of that person (or you know someone who is), it is best to consult with a lawyer who can provide advice on your legal rights and options. Our estate litigation team at Watson Goepel LLP is here to help you. Consult with one of our estate litigation lawyers who can provide valuable guidance, ensuring that your concerns and any claims are addressed, including claims for wills variation.
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.
