Wills Variation Claims by Adult Independent Children

In B.C., a spouse or child of a deceased person (the “will-maker”) can bring an action to vary a will if it fails to make adequate provision for their proper maintenance and support. This includes adult independent children.

When determining whether a will-maker has made adequate provision, the Court will consider the will-maker’s legal and moral obligations. Legal obligations are owed to a spouse or dependent children and do not usually factor into the analysis of claims by adult independent children (unless the child contributed to the estate).

Moral obligations are found in society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards. Moral obligations to adult independent children are “tenuous”, but there may be entitlement if the size of the estate justifies it.

The moral obligation may be negated where the will-maker has just cause, consisting of objectively valid and rational reasons, to disinherit the child.

Cases in B.C. have identified factors to be considered when determining the existence and strength of a will-maker’s moral duty to independent adult 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 will-maker and claimant;
  • gifts and benefits made by the will-maker outside the will;
  • will-maker’s reasons for disinheriting;
  • financial need and other personal circumstances, including disability, of the claimant;
  • misconduct or poor character of the claimant; and
  • competing claimants and other beneficiaries.

Every case is fact specific.

These principles were recently applied in Bautista v. Gutkowski Estatei 2023 BCSC 1485. In Bautista, the will-maker had one child, a son. The will-maker moved to Canada from the Philippines when her son was three months old. She abandoned him, and despite making a life for herself in Canada, she did not petition to have him join her. She did provide for his support by giving money to her parents, who were raising him. At times they had a close relationship, but as her son became an adult, the will-maker disapproved of the lifestyle she was being told that he was leading (although it appears she was being misled). This lead to an estrangement that was the will-maker’s choice (and her son attempted to reach out to her by email and text).

The will-maker made a will leaving 25% of her estate to her son, and 75% to her sister and her niece. The estate was valued at $881,119.

The Court considered the various factors, including the son’s modest standard of living in the Philippines. The Court varied the Will to provide that the son will receive 60% of the estate, instead of only 25%.

Life Estate vs. Licence to Occupy

Courts are occasionally asked for direction on whether a term in a will creates a life estate or a licence to occupy real property. This often results from imprecise drafting in the will, which creates ambiguity.

A life estate grants the holder the right to immediate possession of the property and to its use as the owner, subject to some restrictions to protect the rights of the person entitled to the property at the end of the life estate. Rights to use and transfer the property are restricted by the terms of the grant and the common law doctrine of waste. Ordinarily, the holder of a life estate is responsible for current expenses and routine maintenance.

A licence with respect to real property is a privilege to go on premises for a certain purpose, but does not operate to confirm on, or vest in, the licencee any title or estate in such property.

No particular words are required to create a life estate. Cases have held that to grant a “use” of property can create a life estate. However, the court must determine the testamentary intention of the deceased. The court must read the entire will, and consider it in light of the surrounding circumstances. This means that depending upon the circumstances, similar wording may create a licence or a life estate. The courts have held that since the meaning of words in wills can differ so much according to the context and circumstances in which they are used, it seldom happens that the words of one instrument are a safe guide in the construction of another.

In the recent B.C. Supreme Court decision of Swift v. Nazaroff 2023 BCSC 1602, the Deceased’s will provided that if her daughter had not obtained her real property by right of survivorship (which the Court held she did not), then the daughter was to receive all right, title and interest in the property:

for her use absolutely and forever, subject however, to the right of my son …, to occupy the premises in such circumstances and for such time as may be required when he has no other permanent residence, provided, however, that my son, …, shall be responsible for all expenses, including taxes, utilities and upkeep (maintenance) while he resides on the property.

The issue was whether this created a life estate or a licence to occupy.

The Court held that this created a life estate in the circumstances. This was consistent with the deceased’s testamentary intention to ensure that her son would always, having regard to his recognized challenges (including mental health issues requiring repeated hospitalization), have a place to reside during his lifetime. The deceased was aware of this, and would not have wanted her son to forego seeking medical assistance (including hospitalization) at risk of losing his right to occupy the property. Also, if the deceased had intended to transfer the property to her daughter free from her son’s life estate interest, she would have done so.

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

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

  1. Ian M. Hull at Hull & Hull LLP (Ontario) discusses why a will cannot be used to save an imperfect gift: https://hullandhull.com/Knowledge/2024/01/can-an-imperfect-inter-vivos-gift-be-saved-by-a-will/
  2. Gabriella Banhara at WEL Partners (Ontario) writes about a recent Ontario case which considers delay by the executor in selling the deceased’s home: https://welpartners.com/blog/2024/01/what-constitutes-an-unreasonable-delay-in-the-sale-of-a-deceaseds-home-by-an-estate-trustee/
  3. Estate Litigation in the News: The CBC discusses issues relating to powers of attorney: Life can change overnight. 2 families share what people should know about power of attorney | CBC Radio
  4. Jonathon Vander Zee at de Vries Litigation LLP (Ontario) discusses the law of abatement that applies when determining how to pay estate debts and liabilities: https://devrieslitigation.com/paying-the-debts-and-liabilities-of-an-estate-and-abatement/
  5. Estate Litigation in the News: The CBC also reports on a lawsuit alleging copyright infringement, commenced by the estate of George Carlin against podcasters who used an AI program to impersonate him: https://www.cbc.ca/news/canada/british-columbia/george-carlin-ai-podcast-lawsuit-1.7098925
  6. Ian M. Hull also writes about Yukon enacting legislation to allow fiduciaries (including executors) to gain access to the digital assets of a deceased or incapacitated person: https://hullandhull.com/Knowledge/2024/01/yukon-enacts-legislation-giving-fiduciaries-access-to-digital-assets/

Happy reading!