What comprises the “moral duty”? 

The more recent decision of Clucas v. Clucas Estate [1999] B.C.J. No. 436 provided a summary of the law:

Many cases have been decided under the Wills Variation Act.  The considerations governing the court’s decisions have evolved over time and there is a fairly comprehensive set of competing principles to which effect must be given.  The following is a summary of the principles:

a)      The main aim of the Act is the adequate, just and equitable provision for the spouses and children of testators. 

b)      The other interest protected by the Act is testamentary autonomy.  In the absence of other evidence, a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him.  It is the exercise by the testator of his freedom to dispose of his property and it to be interfered with not lightly, but only insofar as the statute requires. 

c)       The test of what is “adequate and proper maintenance and support” as referred to in s.2 of the Act is an objective test.  The fact that the testator was of the view that he adequately and properly provided for the disinherited beneficiary is NOT relevant if an objective analysis indicates that the testator was not acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards. 

d)      The words “adequate” and “proper” as used in s.2 can mean two different things depending on the size of the estate.  A small gift may be adequate but not proper if the estate is large. 

e)      First, the court must consider any legal obligations of the testator to his spouse and children and second, the moral obligations to them. 

f)       The moral claim of independent adult children is more tenuous than the moral claim of spouses or dependent adult children.  But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made. 

g)      Examples of circumstances which bring for the a moral duty on the part of a testator to recognize in his will the claims of adult children are: a disability on the part of an adult child; an assured expectation on the part of an adult child, or an implied expectation on the part of an adult child arising from the abundance of the estate or from the adult child’s treatment during the testator’s lifetime; the present financial circumstances of the child the probable future difficulties of the child; the size of the state and other legitimate claims. 

h)      Circumstances that will negate the moral obligation of a testatrix are “valid and rational” reasons for disinheritance.  To constitute “valid and rational” reasons justifying disinheritance, the reason must be based on true facts and the reasons must be logically connected to the act of disinheritance. 

i)        Although a needs/maintenance test is no longer the sole factor governing such claims, a consideration of needs is still relevant. 

These considerations are non-exhaustive and may support or negate the existence of a moral duty owed to an adult independent child.  Subsequent cases have added to the list to aid in the assessment of the testator’s moral duty to independent children (McBride v. Voth, 2010 BCSC 443 at paras. 129-135). 

1.       Contribution and Expectation

2.       Misconduct/Poor character

3.       Estrangement/Neglect

4.       Gifts and Benefits made by the testator during lifetime

5.       Unequal treatment of children

6.       Testator’s reasons for disinheritance/Subordinate benefit