Skipping your Children and Leaving your Estate to your Grandchildren? The Court may vary your Will

A parent often worries about their children fighting over their estate after their death.  Parents seek ways to avoid conflicts between their children after their passing, while at the same time maintaining the testamentary autonomy to dispose of their estate as they see fit.  It may seem attractive to skip a generation, and leave your estate to your grandchildren, in the hopes of avoiding conflict between your children. There may be other reasons to benefit your grandchildren.  You may have better, less complicated relationships with them.  Grandchildren may also have greater financial need to establish themselves.

However, issues (and claims) still arise. What if one of your children has more grandchildren then the other children?  Does each grandchild get an equal amount, or does each “branch” of grandchildren divide the same amount equally?  Can you provide a greater benefit to your “favorite” grandchild?  What if one child doesn’t have any children?  What if you have already provided gifts or other benefits (for example, payment of tuition) to some of the grandchildren during your lifetime, but they others?

In B.C. there is another complication: the ability of children (and spouses) to bring wills variation claims. A spouse or child of a deceased person may bring an action to vary the deceased person’s will if it does not make adequate provision for the proper maintenance and support of the spouse or child.  A grandchild does not have standing to vary a will. They will have to be happy with what you decide to give them (subject to the will being varied to reduce their bequest as a result of a wills variation claim by someone who does have standing).

In Scurek v. Scurek 2020 BCSC 450, the Court recently considered whether a testator can discharge his moral obligation to his adult daughter by benefiting her sons at her expense. The deceased had two adult children, a son and a daughter. His daughter (the plaintiff) had two sons, the deceased’s grandchildren.  The plaintiff daughter had no significant assets, and was disabled and unemployable.

Rather than dividing his estate equally between his two children, the deceased decided to leave one half of his estate to his son, and the other half of his estate to his daughter and her two sons in equal shares.  As a result, the daughter received a 1/6 share instead of a 1/2 share.  The estate was worth approximately $1.6M. The plaintiff sought to increase her share of the estate at the expense of her brother’s share. Her position was that her sons’ shares should not be touched. Her brother argued that the will should not be varied, because it reflected a notional equal distribution to the deceased’s son and daughter, but also reflected a concern that if one half of the estate were given to the daughter, it would be wasted due to her inability to manage money, given her past history, thus leaving the grandsons with no benefit.

The judge held that the deceased could not discharge his moral obligation to his child by benefiting her children at her expense. The fact that one-third of the estate was allocated to the plaintiff’s sons “is of no material benefit to her” and her sons “are not obligated to support her, and they can be expected to prioritize their own needs”.  The deceased’s alleged concern that the plaintiff would waste her share of the estate was speculation. Even if it was established that the deceased had this concern, it was unfair and deserved little weight. The plaintiff was a hard worker, who had not been fortunate in financial matters.

As a result, the Court varied the will to provide as follows: ½ to plaintiff, 2/6 to the brother, and 1/12 to each grandchild.

Wills variation claims are fact specific. While a will-maker can certainly make provision for grandchildren, a deliberate attempt to skip over children and provide “their share” to their children (the grandchildren) may result in a variation of the will in favor of that disinherited child.