Loving daughter awarded $250,000 as father did not have valid reasons to disinherit

McLellan v. McLellan, 2011 BCSC 461 

Hugh McLellan died relatively young, aged 61, leaving behind two daughters and his second wife, Raye.  He had a sizeable estate, worth ~$1.75 million, plus nearly $1 million in other assets.  

He had left the majority of his estate to Raye, and provided limited bequests of $15,000 to his daughter Carrie, and $35,000 to Kelly.  Carrie brought an application under the Wills Variation Act to vary the will.  

Carrie's relationship with her father had been a turbulent one.  He had unexpectedly separated from her mother, who had recently suffered a stroke, and embarked upon his relationship with his second wife, Raye.  Carrie took it upon herself to care for her mother (she was unemployed) and refused to accept Raye.  This refusal caused a rift between father and daughter and would lead to periods of estrangement.  

Carrie argued that her father owed her a moral obligation which he had not satisfied.  In his will he had not provided any reasons as to why he had provided limited bequests to his daughters and she felt he should have adequately provided for them.  


The court decided in favour of Carrie and varied the will to allow for her to receive $250,000.

The court, applying s.2 of the WVA and Tataryn principles, found that Hugh's will did not make adequate provision for Carrie.  He owed her a moral obligation and nothing existed to override it.  Any estrangement that had occurred was initiated by Hugh and was his responsibility, even if it related to Carrie not accepting his new wife.  Carrie had been a loving daughter and none of the possible reasons were valid or rational.  Carrie had taken it upon herself to care for her mother and pay her own way through education, thus it was reasonable for her to expect Hugh to provide for her in the will.  

NOTE:  Carrie and her husband had a sizeable net worth, but this factor did not constitute a change in circumstances as her plan to marry her second husband was known to Hugh before his death.  

[139]  Here, if the testator's reason for the limited bequest was the period of estrangement, then that estrangement was largely his responsibility, as I have found, and in any event it had ended completely several years prior to his death (but only after the will was made), as I have also found.  If the reason was because of Hugh's much more modest financial circumstances existing at the time the will was made (as Raye said, "we didn't have any money and were in debt"), then that situation had changed dramatically by the date of his death as by that point his net worth was in the range of $1.8 million (based on the value of all assets including his share of joint assets, but not including life insurance proceeds subsequently paid out to the franchise company and to Raye), and he had declared earnings of $144,000 in his last full taxation year.  If the reason was because he expected that Carrie would eventually get 3/20ths of the wealth he accumulated with Raye, then that expectation has been frustrated because Raye has deleted Carrie from her will.


[142]      There is no doubt that Raye’s legal and moral claim to the estate is strong.  Raye and Hugh were married for 13½ years.  They were very close and they even worked together.  Raye helped run the companies and no doubt contributed in part to their success, although I would note that Hugh’s business experience and acumen were far greater than Raye’s.

[143]      Raye has been left very well off financially as a result of the assets she received both outside and through the estate, and by reason of the income she derives from the franchise businesses.

[144]      Carrie’s claim is a moral one that arises from a number of considerations.  One consideration is that she was a loving daughter, but there are others in addition to that.  Hugh’s departure from the family left Carrie to care for and assist her mother over a relatively long period of time and Carrie interrupted her education to do so.  She financed her own post-secondary education in circumstances where she would have had the reasonable expectation that her father would assist her financially.  In the time immediately prior to his death Hugh knew that Carrie was marrying and that she and Zayvin planned to start a family.  Carrie said that she had expected that her father would have provided for her appropriately given all the circumstances and I consider that expectation to have been a reasonable one.

[145]      I am satisfied that Hugh’s will did not make adequate provision for Carrie.  I am also satisfied that the estate is large enough to satisfy both the legal and moral claims of Raye and the moral claim of Carrie without having to prioritize them.  Finally, I am satisfied that there are no circumstances that negate Hugh’s moral obligation to Carrie.


[157]   Based on all the evidence, but taking into particular account those considerations outlined earlier at paragraph 144, moderated by the fact that Carrie previously received some of the family's then-modest wealth as a result of Gail's death, I conclude that an adequate provision for Carrie is $250,000.  This is a sum that I consider interferes with the testamentary autonomy of the testator only to the extent necessary to give effect to the requirements of the WVA.