B.C. Case Comment: Court of Appeal Overturns Award Against Notary who Witnessed Signature to Land Transfer

What duties does a notary (or lawyer) have when witnessing a signature on a document, such as a land transfer document, to ensure that the person signing the document understands that document and is voluntarily signing it? What if you are only retaining this person for the limited purpose of witnessing your signature because the document must be notarized?

In Engman v. Canfield 2023 BCCA 56, a notary witnessed a signature on a Form A Transfer document, which transferred her 20-acre property to a third party. The notary only witnessed the signature (and was paid $50 for his services). It turned out that the transfer was part of an unconscionable purchase and sale agreement, and the transferor was “situationally vulnerable” when she signed the document. She was elderly, had health problems, and was feeling pressure to sell. She was also deprived of important information when she agreed to the sale, and the agreement was the product of unequal bargaining power and was an improvident bargain. However, the notary was not aware of any of this.

When the transferor was not paid for her property, she brought a claim against various defendants, including the notary (who she sued for negligence). At trial, the notary was held liable for $465,000 in damages, which was the fair market value of the property at the time of the transfer.

At trial, the Court found that the notary owed the transferor a duty to act with reasonable care when he witnessed her signature, and he breached that duty by not inquiring into the transferor’s capacity, her understanding of the form, the voluntariness of the transfer, or that she received independent legal advice.

The B.C. Court of Appeal allowed the appeal, and dismissed the action in negligence against the notary.

The notary argued that he was merely an “officer” witnessing a signature on a Land Title transfer form, and so he had very narrow responsibilities to confirm the identity of the person signing the form and confirm this was the person named in the form, and witness that person’s signature on the document.

The Court of Appeal did not accept this. The notary was acting in his role as a notary public, and there are standards established for his profession, including urging unrepresented persons to obtain independent legal advice, and if they fail to do so taking care to make sure the person is not under the impression that their interests would be protected by the notary. The Court of Appeal held that the Land Title Act and the notary’s professional guidelines required him to go beyond confirming the identity of the signatory and the fact that the signature on the document belongs to that person. For example, the guidelines provide that notaries should make sure the signature is given voluntarily, and the signatory is aware of the significance of the transaction.

The Court of Appeal upheld the finding of the trial judge that the notary breached his standard of care. However, the Court of Appeal allowed the appeal of the finding of causation. The trial judge found that had the notary insisted that the transferor receive legal advice before he witnessed the form (which he was supposed to do), she would have avoided the loss. The notary argued that this was conjecture, and that the loss would have been suffered in any event.

A defendant is not liable in negligence unless their breach caused the plaintiff’s loss. In some cases, causation can be established by inference, but it cannot be guesswork or conjecture. The Court of Appeal held that there were too many unknowns about what would have happened if the notary had met the standard of care, and that the transferor failed to establish on a balance of probabilities that had the notary made in proper inquiries and declined to witness the Form A because of the responses, the transferor would have acted in a different manner. The other evidence in the case showed that the transferor had capacity, and was not interested in seeking legal advice about the inherent risks.

The appeal was allowed that the claim in negligence against the notary was dismissed.

B.C. Case Comment: Court Awards Damages For Amount Received by Defendant from Deceased Days Before Death

If there are suspicions transfers during the deceased’s lifetime, these can be scrutinized and investigated after the death of the deceased. A personal representative ought to consider whether any large transfers should to be challenged, on the basis that a gift was not intended, or that the transfer is otherwise invalid (i.e. due to undue influence, lack of capacity).

In Schwab Estate v. Warriner 2023 BCSC 220, the deceased died from a fentanyl overdose at the age of 47. He had two children, aged 11 and 9. The deceased did not leave a will.

There was a dispute as to whether the defendant was living in a marriage-like relationship such that she was a “spouse” of the deceased. If she was a spouse, she would get a share of the estate under an intestacy. If she was not a spouse, then the children would get the entirety of the estate. It was held that the defendant was not a spouse. This is a highly fact-specific inquiry. I discuss the issue of consideration of spousal status in other posts, for example here.

The second issue in Schwab Estate related to a transfer of $350,000 from the deceased to the defendant four days before his death. The deceased sold his home five weeks before he died, received $800,000 from the sale, and provided a $350,000 bank draft to the defendant.

The defendant argued that the deceased owed her money, and the $350,000 draft was to pay her back. She said that the deceased owed her money for being the primary bread-winner for the years they were together. She gave evidence that there was an agreement between her and the deceased about the approximate amount of the debt and what he was to repay to her.

The court rejected this claim. The Court did not accept the defendant’s testimony, and the documents (in particular bank records) did not assist with her position. There was no evidence of an agreement to pay, and there was no evidence that the amount that would have been payable was $350,000. The Court relied upon the testimony of a witness who described a conversation which suggested that the deceased did not consider that he owed the defendant any money. The bank records also showed that the deceased attended to payment of other debts that he discussed with other parties (including a debt to his drug dealer).

As a result, the transfer was gratuitous and the presumption of resulting trust applied. The defendant failed to establish that the deceased intended to gift her the funds. The evidence was that the deceased intended to gift the funds, potentially with the deceased’s brother. There was also evidence that the deceased intended to shield the monies from the mother of his children.

The Court also held that the transfer was procured by undue influence. The deceased did not transfer the $350,000 of his own full, free and informed thought. The deceased was vulnerable as a result of his ongoing drug addiction, health condition, and paranoia about the mother of his children.

The funds had been spent without an accounting, and so they could not be simply returned. Instead, the court awarded the deceased’s estate damages in the amount of $350,000. The Court also awarded punitive damages in the amount of $50,000, for using her position for her own profit, and spending all of the money with no accounting.

What I’m Reading: Interesting Estate Litigation Articles for May 2024

The following is a round-up of noteworthy articles published this month on estate litigation and related issues:

  1. Kiran Sanghera at Hull & Hull LLP (Ontario) discusses a recent Ontario case in which the contents of the deceased’s journal were validated as a will: https://hullandhull.com/Knowledge/2024/05/finding-a-notebook-to-be-a-will/.   This can be contrasted with the B.C. decision in Hadley Estate (Re) 2017 BCCA 311, where the B.C. Court of Appeal concluded that an entry in a journal did not represent the deliberate and final expression of the deceased’s testamentary intentions.
  2. Gillian Fournie at de Vries Litigation LLP (Ontario) discusses the differences between renouncing, removing and passing over: https://devrieslitigation.com/renounce-remove-pass-over-difference/
  3. Venessa DeDominicis of Pushor Mitchell Lawyers (Kelowna) writes about the effect of marriage or divorce on a will: https://pushormitchell.com/2024/04/marriage-divorce-and-your-will/
  4. Ian M. Hull, also at Hull & Hull LLP, discusses the duty to disclose the transfer of estate assets during estate litigation:  https://hullandhull.com/Knowledge/2024/05/is-there-a-duty-to-disclose-the-transfer-of-estate-assets-during-estate-litigation/
  5. Michael McKiernan authored a post on advisor.ca which discusses a B.C. case in which the court refused to compel an unwilling senior to undergo a capacity assessment: https://www.advisor.ca/tax/estate-planning/court-refuses-to-force-capacity-assessment-on-unwilling-senior/

Happy reading!

Relying Upon Hearsay Statements of the Deceased to Establish Intention

In many estate litigation cases, the court may benefit from evidence of the intentions of the deceased. For example, whether an asset transferred by the deceased was intended to be gift or is held in resulting trust depends upon the intention of the deceased. As the deceased person cannot give evidence, the court is often asked to rely upon out-of-court statements of the deceased to other persons – hearsay evidence. The court is asked to consider the hearsay statements for the truth of their contents, despite the fact that the person making the statement is deceased and unavailable for clarification, expansion or cross-examination.

If an exception to hearsay doesn’t apply, then the court must consider whether a statement should be admitted under the principled approach to hearsay:

  • The hearsay rule provides that out-of-court statements are presumptively inadmissible to prove the truth of what was said, subject to traditional exceptions and the principled exception.
  • The party seeking to lead hearsay evidence must prove necessity and reliability.
  • Necessity is relatively easy to establish in this type of case – the person making the statement has died and cannot give evidence, and so it is necessary to introduce the evidence through hearsay;
  • Turning to reliability, the statement must meet the requirement of threshold reliability (whether the evidence is admissible) and ultimate reliability (the degree to which the hearsay evidence is accepted or relied upon).
  • A relevant factor is the presence of supporting or contradicting evidence.
  • With respect to threshold reliability:
    • First, procedural reliability is established where there is a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the statement because adequate procedural safeguards were present at the time it was made. For example, was the statement made under oath?
    • Second, substantive reliability arises from the circumstances in which the statement came about or was made. It may be established where there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy, or the statement was made in circumstances where cross-examination would add little or be unlikely to change it.

In the estate context, the approach is often to first determine whether a hearsay statement was even made. Once satisfied the statement was made, if the party giving evidence that the statement was made (i.e. to them) is a party interested in the outcome (i.e. the statement helps their position), then this is dealt with by determining the weight to be attributed to any particular statement. The weight to be given may turn on the credibility of the witness.

In Manhas v. Manhas 2024 BCSC 52, the deceased had three children. Two of them were equal beneficiaries of his estate. Approximately five months before his death, the deceased sold his home, and transferred the proceeds of sale to a bank account held jointly with one of his children. This transfer left his estate with virtually nothing. The issue was whether the transfer of sale proceeds into the joint account constituted a gift to the child who was a joint owner.

The donee testified that her father told her that he wanted her to have the sales proceeds from the house – the hearsay statements. The Court admitted the hearsay evidence. The done was a credibility witness, and the statements were consistent with his conduct (other evidence). This, and other evidence, established that the father intended to gift the proceeds of sale to his daughter.

B.C. Case Comment: Transfer of Property to Child Set Aside on Basis of Undue Influence

I have previously discussed that gifts are irrevocable, and so a donor cannot change their mind and seek to take back property that they have gifted. However, the Court may set aside a gratuitous transfer if it was procured by undue influence, whether that be intentional influence or unintentional influence.

In Sandu v. Sandu 2023 BCSC 323, the Court considered the transfer of property in 2016 from a husband and wife to their youngest son. The property was the parents’ only substantial asset. The transfer was purportedly a gift, and no consideration was paid by the son. The parents later requested that their son transfer title to the property back into their names, and he refused to do so.

In this case, the Court ordered that the transfer be set aside, and title be restored to the parents.

At the time of the transfer, the father was 91 years old and the mother was 88 years old. Neither of them received any formal education, neither of them spoke or read English, and both of them were functionally illiterate in their mother tongue of Punjabi. They had always been completely dependent on family members for assistance with written transactions. In fact, their eldest son was appointed as their litigation guardian for the trial of the action.

Equity presumes bargains over gifts. Where property is transferred to another without consideration, the presumption of resulting trust applies. The onus is on the transferee to rebut the presumption by demonstrating that a gift was intended.

In B.C., section 23(2) of the Land Title Act provides for a statutory presumption of indefeasibility – the idea that registration of title is conclusive evidence at law and in equity that the person named on title is indefeasibly entitled to an estate in fee simple in the land. In other words, the registered owner is presumed to be the true beneficial owner of the property.

However, the presumption of indefeasibility can be rebutted, including by the existence of a resulting trust, and also if the registered owner took their interest by the exercise of undue influence. There can be no gift where the transfer was made under undue influence.

There are two branches of undue influence for inter vivos transfers:

  1. intentional or actual undue influence; and
  2. unintentional or presumed influence.

The first branch is characterized by the influencer’s conduct, and may include:

  • “overt and violent threats (give me the house or I’ll beat you…);
  • “subtle forms of persuasion (give me the house or I don’t know if I’ll be able to look after you anymore…)”;
  • persistent requests for the property ultimately disposed of; or
  • exploitation of the donor’s desire to keep the family peace.

The second branch recognizes unintentional undue influence, which is to be presumed if:

  • there is a “potential for domination” given the nature of the relationship between the parties (this includes solicitor/client, parent/child, and guardian/ward relationships);
  • the defendant unduly benefited or the plaintiff was unduly disadvantaged, but only if the transaction is commercial.
  • If the plaintiff establishes circumstances that trigger the presumption of undue influence, the defendant has the onus of rebutting it. To rebut the presumption, the defendant must show that the plaintiff entered into the transaction with full, free and informed thought.

The receipt of independent legal advice may be a critical factor.

In Sandu, the Court observed that in the context of intergenerational relationships involving care, undue influence is a particular concern.

The Court held that it did not need to determine whether their was actual undue influence (the first branch), as there was a presumption of undue influence (the second branch) which had not been rebutted. The Court considered whether the parents received independent legal advice, and determined that what limited advice they received did not constitute adequate legal advice. The mere presence of legal advice is insufficient.

Finally, the presence of undue influence meant that the limitation period to bring the claim had not expired. In cases of undue influence, the time does not begin to run to bring a claim until the donor can be said to have been freed from the sphere of undue influence. As a result, while more then two years had passed since the transfer, in effect the limitation period was extended while the parents remained under the influence of their son.

B.C. Case Comment: Obtaining a Committeeship Order When You Have an Adult Guardianship Order in Another Jurisdiction

A person may be appointed as committee to manage an incapable person and/or their affairs.

The usual process is to bring an application under the Patients Property Act [RSBC 1996] Chapter 349 for an order declaring the person incapable, and the appointment of a committee.

A person applying for a committeeship order must provide affidavits of two medical practitioners setting out their opinion that the person who is the subject of the application is, because of mental infirmity arising from disease, age or otherwise, or disorder or disability of mind arising from the use of drugs, incapable of managing their person or their affairs. Without the two affidavits, the court cannot make the order under the act.

Sometimes, the applicant is unable to obtain the two medical affidavits. The patient may be in denial or otherwise refuse to submit to a medical examination. There are cases which discuss the limited circumstances where a person can be ordered to submit to a medical examination for this purpose (which is in conflict with rights to personal autonomy). See for example Temoin v. Martin 2012 BCCA 250.

In the B.C. Supreme Court case of Re Binder (Patients Property Act) 2022 BCSC 990, the Court dealt with a different issue. The petitioner sought orders declaring his father incapable and appointing the petitioner as committee. The father lived in a care home in Switzerland. There was evidence that two Swiss medical professionals assessed the father, and concluded that he suffered from severe cognitive impairment, and increasing signs of dementia. They also noted that the father had a negative attitude about undergoing further examinations. One of the doctors concluded that the father had a “lack of capacity to judge the necessity of supportive measures”, and “capable of judgment” had a specific meaning under Swiss law. The petitioner had been appointed in Switzerland to manage his father’s assets.

The petitioner argued that there was a gap in the Patients Property Act for admitting evidence from foreign medical practitioners and recognizing foreign adult guardianship orders. Due to the circumstances, including the father being in Switzerland had the evidence of his resistance to undergoing further medical assessment, the petitioner had no meaningful way to obtain the two medical affidavits to meet the requirements of the Patients Property Act.

The Court agreed, and was satisfied that pursuant to its inherent parens patriae jurisdiction, it could make the declaration and appointment of the petitioner as committee.

This case is helpful authority for a person who has obtained an adult guardianship order in another jurisdiction, and seeks a committeeship order in British Columbia but is unable to obtain the two medical affidavits.

What I’m Reading: Interesting Estate Litigation Articles for April 2024

The following is a round-up of noteworthy articles published this month on estate litigation and related issues:

  1. Gabriella Banhara of WEL Partners (Ontario) discusses the issue of pets and estates, with reference to a recent Ontario decision: https://welpartners.com/blog/2024/04/pets-and-estates-the-recent-decision-of-carvalho-v-verma/
  2. Ian Hull and Chigozie Enwereuzo of Hull & Hull LLP (Ontario) consider the concept of where an estate trustee “resides”, and why that matters: https://hullandhull.com/Knowledge/2024/04/where-does-an-estate-trustee-actually-reside/
  3. Onyx Law Group discusses a number of questions about family and separation, and estate issues: https://onyxlaw.ca/separated-but-not-divorced-inheritance/
  4. Estate litigation in the news: there have been a number of articles relating to O.J. Simpson’s estate, in particular whether the Goldman and Brown families will be able to collect on their civil judgment: https://www.cbc.ca/news/world/oj-simpson-estate-victims-explainer-1.7171644
  5. Doreen So, also of Hull & Hull LLP, writes about estate issues in the Netflix series “The Gentlemen” in a pair of posts: https://hullandhull.com/Knowledge/2024/04/the-gentlemen-primogeniture-and-intestacies-in-ontario/ and https://hullandhull.com/Knowledge/2024/04/the-gentlemen-enforceability-of-pre-death-contracts/

Happy reading!

B.C. Case Comment: Applications to Remove Attorneys or Representatives

I have previously written about the issue of applications to remove co-trustees or co-executors. On occasion, applications are also made to remove attorneys named in a power of attorney or representatives named in a health care representation agreement.

In Stockall (Re) 2023 BCSC 437, the donor was 93 and suffered from a number of medical ailments including advanced dementia. He had six children, and he named two of his daughters as his attorneys under an enduring power of attorney, and health care representatives under a health care representation agreement. The two sisters sought to remove each other.

There was a great deal of conflict between the two sisters, and they were described as “bitterly divided.” There was disagreement on issues relating to the care that each of them provided for their father, whether their father’s home should be sold to finance his care and where he should live, accounting of spending of their father’s monies, and alleged alienation of their father.

The Court held that the present arrangement of both parties acting as attorneys and representative could not continue. The Court held that the circumstances were analogous to a hearing to appoint a committee (a person to manage the affairs and care of an incapable person). A committeeship application requires affidavits from two physicians confirming that the patient is incapable, which could not be obtained in this case (otherwise the daughters likely would have applied to be committee instead).

The considerations for the selection of an appropriate committee include the following non-exhaustive list:

  1. whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;
  2. whether immediate family members are in agreement with the appointment;
  3. whether there is any conflict between family members or between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient;
  4. the level of previous involvement of the proposed committee with the patient, usually family members are preferred;
  5. the level of understanding of the proposed committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;
  6. whether the proposed committee will provide love and support to the patient;
  7. whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the patient’s benefit;
  8. whether a proposed committee has breached a fiduciary duty owed to the patient, or engaged in activity which diminishes confidence in that person’s abilities to properly handle the patient’s affairs;
  9. who is best to advocate for the patient’s medical needs;
  10. whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; and
  11. whether a division of responsibilities such as between the patient’s estate and the patient’s person to different persons would serve the best interests of the patient, or would such a division be less than optimal for the patient.

The Court in Stockall considered all of the facts, including the allegations made by each sister, and the care provided by each of them so far. The Court observed that one of the sisters had more support from other family members, and it was likely that this sister would at least continue to consult and communicate with the siblings who supported her position (who form a majority).

While it was not possible to give effect to the father’s desire to have both daughters continue to act, he did express his preferred care arrangement when he entered into a private care agreement with one of his daughters. This was given considerable weight. The only way to give that agreement practical effect was to make the daughter with who he made the agreement the sole attorney and representative. The other daughter was removed.

The daughter that was removed had also failed to advise the court that her father had been hospitalized, which was an “obviously relevant circumstance.” This was described as showing extremely poor judgment, deceptive and akin to a breach of fiduciary duty.

Just like a decision to name more than one person to act together as an executor or a trustee, care must be taken when selecting attorneys and representatives who can work together.

Removal of Deadlocked Co-Executors

Often, a will-maker or the settlor of a trust will appoint more than one person to act as co-executors or co-trustees. Unfortunately, disagreements between co-executors and co-trustees frequently arise. Sometimes this results in deadlock, and the administration of the estate or trust cannot move forward. One available remedy is an application to removal or replace one or more of the executors/trustees.

In the recent B.C. Supreme Court decision of De Bonis (Re) 2023 BCSC 713, the applicant sought the removal of herself and her brother as co-executors and trustees of their parents’ estates. She sought the appointment of an independent trustee (a trust company) to administer the estates. In her view, she and her brother were unable to work together and they were in a deadlock on a number of issues relating to administration of the estates. She also argued that her brother was in a conflict of interest because of a right of first refusal in his favor with respect to one of the main assets of the estates.

The brother opposed the application, and took the position that if his sister wished to be removed, then she could be removed and he could remain as the sole executor. He also denied the existence of a conflict of interest.

The Court removed both siblings as executors, and replaced them with the independent trust company.

In doing so, the Court made the following observations about the law and the considerations of the court when hearing an application to remove executors:

  • A will-maker has the right to choose their executor, and their decision is entitled to deference and will only be interfered with if there is clear and cogent evidence to do so;
  • The executor’s acts or omissions must be of such a nature to endanger the administration of the estate;
  • The Court’s main consideration is the welfare of the beneficiaries (collectively, not just the interests of a particular beneficiary);
  • Four categories of conduct can warrant removal:
    • Endangerment of trust property;
    • Want of honesty;
    • Want of proper capacity to execute duties; and
    • Want of reasonable fidelity.
  • The existence of friction between the executor and one or more beneficiaries is generally, in and of itself, not sufficient to warrant the removal of the executor. However, animosity can be relevant to whether it hampers the proper administration of the estate. A finding of wrongdoing is not necessary;
  • Removal is not meant to punish past misconduct, but past misconduct that is likely to continue will often be sufficient to justify removal;
  • An executor’s conflict of interest may warrant removal. However, not all perceived or actual conflicts of interest will give rise to the removal of an executor. But f the executor is in a conflict of interest, actual or perceived, and it is to the detriment of the beneficiaries, the executor must be removed.

In De Bonis, the Court was not convinced that the siblings will ever be capable of cooperating effectively with one another in their roles as co-executors. Even if the applicant was removed, and her brother remained as sole executor, the Court was still concerned that the orderly administration of the estates would be delayed by new disagreements, miscommunications, or misunderstandings. It was in the best interests of the beneficiaries for both executors to be removed and replaced with an independent and neutral executor. The Court also found a conflict of interest justifying removal. The Court made clear that there was no wrongdoing by either co-executor. Rather, there was an impasse that could not be overcome while they remained as executors.

The Court in De Bonis observed that the relationship between the two siblings was dysfunctional long before their parents passed away. In light of this, it should not have been a surprise when this dysfunction continued after death when they were required to act together as co-executors. This case serves as a good reminder that you should give careful consideration to your selection of executor, and if you have decided to have more than one executor then the people that are appointed need to be able to work together.

Variation of Will by Adult Children Even When Will-Maker Had Valid and Rational Reasons

In B.C., a will-maker’s spouse or child (including an adult independent child) can bring an action to vary the will-maker’s will, if the will does not made adequate provision for them. There is no requirement that a will-maker treat their children equally in their will. However, unequal treatment is a frequent cause of wills variation litigation.

When considering wills variation claims by adult children, the Court must consider the will-maker’s moral duty owed to adult children, to be assessed using the objective standard of the objective will-maker, and keeping in mind that the moral duty may be negated where there is just cause. In other words, a will-maker may treat their children unequally (or even disinherit a child), when there are valid and rational reasons for doing so.

Some litigants sought to make the argument that if the will-maker provides reasons that are valid and rational, the Court should defer to the will-maker’s decision to treat children unequally. The argument was that if the reasons were valid and rational, then the Court cannot vary even if other factors weigh in favor of a variation.

The B.C. Court of Appeal was asked to consider this issue in Tom v. Tang 2023 BCCA 221. In Tom, the will-maker had five children. Seven days before her death, the will-maker changed her longstanding will which provided that each of her five children received an equal share of her estate. The new will provided that two of her children, who had lived with her and provided her primary care for three years, would received approximately 85% of the estate. The other three children would receive approximately 5% each. The estate was valued at approximately $2.3M. The will-maker had written a letter explaining why she intended to favor two of her children.

The three children receiving lesser amounts brought an action to vary the will. The trial judge varied the will to provide that the two children who provided primary care would each get a gift of $300,000, and then the remainder of the estate would be divided equally among the five children. This was viewed as a balance between the will-maker’s attempt to recognize the role of the two children in her care, but also meet her moral obligations to all of her children.

The issue on appeal was whether the will should have been upheld given that the will-maker had valid and rational reasons for leaving less to three of her children. Again, the argument was made that if there are valid and rational reasons, then the will cannot be varied.

The B.C. Court of Appeal made clear that this is not the law. Previous cases did not stand for the principle that a will-maker’s unequal treatment of adult children must be deferred to, without regard to the objective standard of the reasonable will-maker and current social norms, as long as the subjective reasons given for the unequal distribution are valid and rational.

A will-maker’s moral duty to adult children must be assessed from the viewpoint of a reasonable testator, and that the moral duty may be negated where there is just cause. So, the will-maker’s purported “valid and rational reasons” are only one factor, and the trial judge did not err in assessing using the objective standard.

The Court of Appeal agreed with the trial judge that the will did not make adequate provision for the three children, and agreed that the will ought to be varied. The Court of Appeal ordered that the two children who provided care would each get 30% of the estate, and the remaining three children should receive an equal share of the remaining 40% of the estate. This would provide the two care-providing children with slightly more than they would have received at trial.

While this case provides some guidance to wills variation claimants, it creates uncertainty for will-makers, as it shows that even though the will-maker may have had reasons to treat their children unequally, and these reasons are valid and rational, their will may still be varied by the court due to other factors.