Canada Case Law

Wols v. Funk

Court

Supreme Court of British Columbia

Court varied the Will under s.60 WESA because, on an objective assessment, the testator failed to make adequate provision for his disabled child; government benefits did not negate the moral obligation; the defendants' assistance was modest and largely compensated; balancing testamentary autonomy and duty to child required increasing the child's share while preserving a modest benefit to the defendants.

Source excerpt

• Wills variation
• Testamentary autonomy
• Adequate provision under s.60 wesa
• Disability and dependency
• Costs

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Fornwald v. Page

Court

Supreme Court of British Columbia

The court varied a 1984 will under WESA s. 60, finding inadequate provision for a 37-year spouse and awarding the brother $350,000 from a $1.7M estate.

• Wills variation
• Testamentary autonomy
• Spousal maintenance and support
• Application of tataryn test
• Wills-variation
• Spousal-maintenance

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Kan v. Cheong

Court

Supreme Court of British Columbia

A British Columbia court varied a will under s. 60 WESA, finding inadequate provision for a daughter who had been treated as a niece and awarding equal one-third residue shares.

• Wills variation
• Testamentary autonomy
• Moral duty to children
• Standing
• Wills-variation
• Wesa

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Lam v. Law Estate

Court

Supreme Court of British Columbia

The court varied a mother’s 2018 will, finding she had favored her son through major lifetime gifts and that the distribution was not adequate, just or equitable.

• Will variation
• Testamentary autonomy
• Inter vivos gifts
• Hearsay principled approach
• Distribution of property
• Will-variation

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Simmons v. McDougall Estate

Court

Supreme Court of British Columbia

Will-variation claim under WESA partly succeeded. The court found the unequal bequest scheme unjustified overall, but accepted some preference for Geoffrey and varied the will accordingly.

• Will variation
• Testamentary autonomy
• Moral duty to children
• Adequacy of provision under wesa
• Will-variation
• Wesa

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Bautista v. Gutkowski Estate

Court

Supreme Court of British Columbia

The court varied a mother’s will under WESA s. 60, finding she owed a moral duty to her only son and that estrangement did not justify the original division.

• Wills variation
• Testamentary autonomy
• Moral duty to children
• Estrangement
• Probate and administration
• Wills-variation

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Tom v. Tang

Court

British Columbia Court of Appeal

The Court of Appeal held that subjective reasons for favouring some adult children do not displace the objective judicious-parent test under WESA. The will was varied.

• Will variation
• Testamentary autonomy
• Moral duty to adult children
• Objective judicious testator
• Burden of proof
• Admissibility of testator's reasons

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Pascuzzi v. Pascuzzi

Court

Supreme Court of British Columbia

The Supreme Court of British Columbia varied a will under s. 60 WESA, finding a moral obligation to an adult daughter and awarding her 30% of net estate.

• Wills variation
• Moral obligation of testator
• Testamentary autonomy
• Maintenance from estate
• Section 60 wesa
• Wills-variation

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Nova Scotia (Attorney General) v. Lawen Estate

Court

Nova Scotia Court of Appeal

The Court of Appeal allowed the Attorney General's appeal, holding the application judge erred: there was no evidentiary basis to find ss.2(b) and 3(1) of the TFMA engaged s.7 or s.2(a); the application judge failed to apply the two-part s.7 analysis and to identify principles of fundamental justice or evidentiary harms; the read-down was unwarranted; costs were awarded to the Attorney General and ordered payable personally by the executor and beneficiary, not from the estate.

Source excerpt

• S.7 liberty
• S.2(a) freedom of conscience
• Testators' family maintenance act
• Testamentary autonomy
• Public interest standing
• Costs against executor/estate

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Jean-Richard-Dit-Bressel v. Carr

Court

Supreme Court of British Columbia

Leave was granted to amend a response to add a constitutional challenge to s. 60 of WESA, with notice to the Attorneys General and prompt hearing efforts.

• Will variation
• Constitutional challenge
• Standing
• Amendment of pleadings
• Testamentary autonomy
• Preliminary hearing

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