The Plaintiff, the 25 year old daughter of the deceased, brought an application, by way of summary trial under Rule 9-7, seeking an order varying the will of her mother. Her mother had left the residue of the estate, consisting of annuity payments under structured settlement, to her husband with intention that he would provide for her daughter out of the residue at his discretion. The deceased had passed away June 1, 2013, prior to Part 4 of the new Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] coming into force. Therefore, the court’s power to vary the will derived from the former provisions of the Wills Variation Act, R.S.B.C. 1996, at ss. 2 and 5.
The deceased’s daughter was a single mother with two young children. The daughter had a close relationship with her mother, but sadly her mother’s will made no direct provision for her.
HELD: Action allowed – the will was to be varied in favour of the daughter.
The court found the daughter had a strong moral claim against her mother’s estate. The daughter and her children had great financial need which outweighed the claims of the husband who had limited legal and moral entitlement to a share of the estate. The husband only had a relatively short relationship with the deceased and was not financially depend on her. The husband did not have any claims based on unjust enrichment and he would not have been entitled to spousal support on breakup of the marriage. Due to the modest size of the estate, the structured settlement proceeds would only have been sufficient to lift her daughter and her children out of poverty for a limited time. There was discussion over the deceased’s previous concerns over her daughter’s ability to exercise good financial judgment, there was no evidence that led to any such concern at this time. In determining whether variation should occur, the court ensured the order did not offend the deceased’s intentions and found it was adequate, just and equitable that the entire estate be for the daughter’s benefit. The court ordered immediate full reapportionment in favour of the daughter.
15 The plaintiff undeniably has a strong moral claim against her mother's estate. She and her children have great financial need.
16 In the course of his examination for discovery, Mr. Martens was cross-examined on a letter he wrote to Michelle's family after this action was commenced. His evidence included the following:
Q Going back to the last paragraph, the sentence following the one that we have been discussing at some length. It says, the cycle of enabling had to stop. I'm confused because you're saying that there was a cycle of enabling which was, as I understand it Michelle, the deceased, or yourself occasionally giving Marlee some money as she required it; is that the cycle of enabling that you are referring to there?
A The cycle of enabling, yeah, that had been going on in that family circumstance with Marlee and Michelle for quite a few years. I'm not saying that I was enabling her necessarily. There was some things that I knew I should be more careful about because it was unhealthy for her, right.
Q But the enabling that you're referring to is providing her with sums of money from time to time; is that correct?
Q So I'm just wondering how, if you're giving her sums of money from time to time into the future, how that breaks the cycle of enabling in your mind. Can you explain that?
A Well, it's not enabling when that's her money. It's a gift, it's part of her inheritance, it's her money. So I'm not enabling her by giving her money and just saying do what you want with it. We were making decisions together was the plan to move her forward, to purchase a home. There is nothing enabling about that. That is what any parent would do with their child if they had the funds to do it, right, so. Inappropriate bailing out of cell phones and her not paying her rent and bailing her out continually when she puts herself into a problem is enabling. That's a different story.
17 The above-cited provisions of the WVA existed principally to ensure that the legal and moral obligations of a testator are met out of the estate, and that no spouse or child is disinherited without a valid, rational reason. In the present case, there appears to be no substantial conflict between the claim of the plaintiff and the testator's intentions; it is admitted by Mr. Marten's that Michelle intended the residue of the estate to be used for her support, at his discretion.
18 Mr. Martens submits that there is no reason why not to apportion the estate so that the payments under the structured settlement could go partly to him — as the beneficiary under the will — and partly to the plaintiff.
19 The leading Canadian decision on variation principles is Tataryn v. Tataryn Estate,  2 S.C.R. 807, 93 B.C.L.R. (2d) 145(S.C.C.) . In delivering the Court's unanimous judgment, McLachlin J., as she then was, confirmed that the language of the WVAconfers on the trial court a broad discretion to make orders that are just in the specific circumstances of a case, and in light of contemporary standards. The WVA is to be seen as imposing limitations of testamentary authority. At a minimum, survivors are not to be left destitute, such that they will impose a burden on the state; but what is to be considered "adequate, just and equitable" is not limited to need alone.
20 Tataryn further discusses the means by which competing claims are to be assessed:
How are conflicting claims to be balanced against each other? Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator's life -- i.e., claims based upon not only moral obligation but legal obligations -- should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority. In doing this, one should take into account the important changes consequent upon the death of the testator. There is no longer any need to provide for the deceased and reasonable expectations following upon death may not be the same as in the event of a separation during lifetime. A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes. Any moral duty should be assessed in the light of the deceased's legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children.
21 In my judgment, the needs of the plaintiff, in relation to the very modest size of the estate, completely outweigh all claims of Mr. Martens. Mr. Martens, though he was no doubt the loving spouse of the deceased, had only a short relationship and demonstrates no financial dependence upon her during their lifetime. The amount of the structured settlement fund did not increase in value during their relationship. He has no claims founded in unjust enrichments. In the circumstances, he would not have been entitled to spousal support on the breakup of their marriage. His legal and moral entitlement to a share in Michelle's estate is consequently limited, at best. Furthermore, the size of the estate is so modest that in their entirety, the structured settlement proceeds would appear to be sufficient only just to lift the plaintiff and her two dependent children out of poverty, and then only for so long as the fund lasts.
22 In the present case it does little violence to the testator's intentions to make an immediate full reapportionment in the plaintiff's favour. It is a fair inference, from the evidence, that the testator's decision to leave to Mr. Martens' discretion the amount of support to be paid to the plaintiff, when the will was made in 2012, may have reflected some hesitation as to the plaintiff's ability to exercise good judgment. Whatever qualms may have led the testator to structure her will in this fashion, as opposed to leaving an outright gift to the plaintiff, there is no evidence now which points to any such concern. Indeed, the mechanism of the structured settlement itself would serve as a check on the funds being squandered. The plaintiff appears, on the evidence, to have survived a difficult adolescence and now to be doing her utmost to see to the need of her children, in very challenging circumstances.
23 I find that what is adequate, just and equitable is that the entire residue of the estate be for the benefit of the plaintiff. In particular, I order that Mr. Martens forthwith pay to the plaintiff the full amount of payments received under the Agreement since the death of the testator; and that henceforth, all payments under the Agreement are to be made to the plaintiff, for the duration of the guarantee period provided therein.