Wills variation action found premature as unequal treatment of children not in issue

Yee v. Yu, [2010] B.C.J. No. 2037 

Tom Yee sought variation of his father’s will as he felt he had effectively disinherited him.  Tom was one of 5 siblings – 3 brothers and 2 sisters – all still alive.  His father’s will provided the entire estate to pass to his wife and executrix, Mrs. Yu, and in the event she pre-deceased him, the real estate was to go to two of the three sons and the balance to all of the children EXCEPT Tom. 

His father had provided reasons within his will outlining why he had not made any provision for Tom: 

a)      My father’s house was given to Tom;

b)      Tom is one of the wealthiest among my children, earns a good income and has been independent from me and not assisting with my farming business at the Property over the years;

c)      Tom would not share the cost of my recent birthday/anniversary banquet together with the four other children which very much upset my spouse and I and our other four children; and

d)      Tom has not contributed financially to my spouse and I and has not shown much caring for my spouse and I over the years like my other four children had.

All the other children supported the gift to their mother, which included:

  • Two adjacent agricultural parcels of land in Burnaby valued $1,012,500 ( The properties operated a market garden farm business)
  • Cash and investments:  $149,428 before accrued interest.
  • Government of Canada death benefit: $2,500
  • Total estate value:  $1,164,428.

Mrs. Yu, aged 83, continued to work limited hours in the farm business which was owned by two of the siblings who had earned their shares from the father by working in it. 

In assessing the potential claim by the plaintiff, the court noted the plaintiff was a retired parole officer and had real estate assets and an RRSP.  The plaintiff’s assets were estimated at ~$2,600,000, he was in receipt of a pension and was the wealthiest of the siblings (all self-sufficient).  The plaintiff’s relationship with his family was disconnected and he had spent much of his early life with his grandparents.  The application to alter the will seemed to have been sparked from the unequal treatment of the children in the gift-over within the will.  However, since Mrs. Yu outlived her husband, the unequal treatment was not an issue in the case and the true challenge was to the gift to Mrs. Yu. 

In dismissing the son’s application, the court visited the law on moral obligations and also found that Tom’s claim was premature relating to the unequal treatment.  They addressed the question of whether or not the will should be varied when it left everything to the father’s first and only spouse with the child contesting the will being an independent adult who was financially secure, thriving, and with no special claim against the estate arising from contribution to it. 

14     The plaintiff felt the sting of his father preferring his siblings in the gifts over to them. That was no doubt what motivated this lawsuit. However, the estate went to Mrs. Yu, and it is that gift which the plaintiff must challenge.

15     The two interests protected by the Wills Variation Act are the "adequate, just and equitable" provision for the spouse and the children of the testator, and the deceased's testamentary autonomy. The moral obligation of a testator to adult children was discussed by McLachlin J. (as she then was) in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807:

·         31 For further guidance in determining what is "adequate, just and equitable", the court should next turn to the testator's moral duties toward spouse and children. It is to the determination of these moral duties that the concerns about uncertainty are usually addressed. There being no clear legal standard by which to judge moral duties, these obligations are admittedly more susceptible of being viewed differently by different people. Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought. For example, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits. Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator's other obligations may allow. While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made: Brauer v. Hilton (1979), 15 B.C.L.R. 116 (C.A.); Cowan v.Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.), aff'd (1990), 37 E.T.R. 308 (B.C.C.A.); Nulty v. Nulty Estate (1989), 41 B.C.L.R. (2d) 343 (C.A.). See also Price v. Lypchuk Estate, [1987] B.C.J. No. 442, supra, and Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (C.A.) for cases where the moral duty was seen to be negated.

16     The factors which the courts have looked at in determining the moral claim of adult children include:

  • a disability of the adult child;
  • an assured or implied expectation of the child arising from the size of the estate or the child's treatment during the parent's life or from the child's contribution to the parent's assets
  • the financial circumstances of the child;
  • the probable future difficulties of the child;
  • the size of the estate and other legitimate claims;
  • misconduct or poor character of the child;
  • estrangement or neglect by the child to the parent;
  • gifts and benefits made by the parent to the child during the parent's life;
  • unequal treatment of the child.

17     Almost none of the above favour a variation of the will to provide for the plaintiff. As I have said, the unequal treatment of the children in the gift-over is not an issue in this case because Mrs. Yu survived the father. Likewise, the validity or rationality of the reasons the father gave for that preference is not germane to the case. I therefore do not propose to address the evidence with respect to those issues, particularly since - depending on what Mrs. Yu does with her estate - the matter may be back before the courts in the future.

18     The question before me is whether this will should be varied when it left everything to the father's first and only spouse (80 years old at the time of the father's death) and the child contesting the will is adult, financially secure and thriving, with no special claim against the estate arising from contributions to it. Counsel for the parties have found no case where a will has been varied in similar circumstances. I think the answer to that question is in the negative.

19     The action is therefore dismissed.