How does the court decide when to vary a will?

When an application is made under the Wills Variation Act (WVA), the courts are basically looking to make sure that the will has made "adequate provision for the proper maintenance and support of the testator's spouse or children".   This may provide guidance to the courts, but what does this phrase really mean?  How is a person from the general public supposed to assess whether their situation qualifies for the court to vary the will or not?  The field of law has become an intricate and complex game of interpretation and it is forever daunting for the lay person to navigate.  We have provided a few, hopefully helpful, explanations on what the courts consider when applying this principle to cases.  

The earliest case introducing this moral duty was Walker v. McDermott, [1931] S.C.R. 94 which provided at 96:

If the court comes to the decision that adequate provision has not been made, then the court must consider what provision would not only be adequate, but just and equitable also.

This is the building block and basis for which the court decides the degree of a testator’s moral duty. 

From there, the case of Tataryn v. Tataryn Estate (1994), 3 E.T.R. (2d) 229 took the reins and is now the leading authority on a testator’s duty to make adequate provision for the proper maintenance and support of a spouse and child.  The Supreme Court of Canada lay down some important points:*  

-          The court will look at the will and decide whether or not the testator has satisfied s.2 of the WVA in that the will “makes adequate provision for the proper maintenance and support” for the child or spouse.  If it is established that the will does not do so, the court, at their discretion, substitute with what they find to be “adequate, just and equitable”. 

-          The standard that the courts apply is that established in Walker v. McDermott: an objective standard that of a judicious parent seeking to discharge both their marital and parental duty.  This objective test is determined according to contemporary standards.  The court will look at the current standards and attempt to apply them.

-          The phrase “adequate, just and equitable” is to be viewed in light of current societal norms.  Two such norms exist:  Legal obligations and Moral obligations.  These two norms provide a guide to what is “adequate, just and equitable”:

            Legal obligations:  those which the law would impose on a person during his or her life

            Moral obligations:  those found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. 

-          Legal claims take precedence over moral claims.  If the size of the estate permits, all claims should be met. 

-          The court looks to maintain “adequate, just and equitable” provision for a spouse or a child but also seeks to uphold testamentary autonomy.  Where conflict does arise, the balance is to tip in favour of “adequate, just and equitable” provision for claimants.

The date of the testator’s death is quite important as it establishes the time window that the court will look through when applying the contemporary standards (Kelly v. Baker (1996), 15 E.T.R. (2d) 219 (B.C.C.A.).

For a good summary of the principles, the case of Clucas v. Clucas Estate [1999] B.C.J. No. 436  provides a nice outline.

Other important considerations:

                Standard of Living

"The primary consideration is provision of an appropriate standard of living..." Sawchuk v. Mckenzie [2000] B.C.J. No. 29

The court is not restricted by the phrasing of s.2 of the WVA to the basic needs of the claimants and do take into account the standard of living of both the testator and applicant (Walker v. McDermott).  The court will “consider the situation of the child, wife or husband, and the standard of living to which, having regard to this and the other circumstances, reference ought to be had.”  The consideration is cited well in Holland v. Holland Estate (1995), 9 E.T.R. (2d) 119 (B.C.S.C.):

“the test in determining whether a testator spouse has been guilty of a breach of moral duty is, whether as a just husband, seeking to discharge both his marital and his parental duty, he properly considered the situation of his wife and an appropriate standard of living for her”

Taking into account the size of the estate, the court looks to achieve a level of comfort for the claimant child or spouse while balancing the other claims.  The court will not exhaust the assets to allow the spouse or child to live at the same level or above what they were accustomed to during the testator’s life, but will try to maintain, as much as possible, a standard that they ought to have had given the size of the estate. 

                Size of the Estate

In addressing “adequate, just and equitable”, the size of the estate becomes an important consideration.  It may be the case that the child or spouse has received very little but in fact the estate was not so large to allow for more (Walker v. McDermott, [1931] S.C.R. 94). 

If the estate is large, it is much easier for the court to adequately provide for a claimant while also avoiding deprivation of other claims against the estate.  It becomes a case where more goes around if there is more to go around; the larger the estate, the more likely all claims are able to be satisfied.  Remember, legal obligations take precedent over moral obligations and a large estate allows for greater likelihood that moral claims will succeed. 

On the other hand, if the estate is relatively small there will be potential for greater conflict.  Legal obligations become of greater importance as the court must make sure the testator’s primary responsibilities are taken care of.  Moral obligations take on a lesser role and become difficult to carve out of the estate.  


*B.C. Probate and Estate Administration