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CONTESTATION OF CLAIMS - Adequacy of bequests to dependants  

Tuesday, June 15, 2021 @ 5:53 AM  


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Appeal by the testator’s son from a trial decision varying his father’s will. In his will, the father divided the residue of his estate one‑half to the son and one‑half to be divided equally between his daughter and her two sons. At the time of his death, the estate’s value was about $1,900,000. The daughter was 58 and disabled at the time of trial and unemployable. She had no significant assets and received a modest disability pension of $706 per month. She relied on financial assistance from a friend, from whom she received about $10,000. The son, 60 at the time of trial, was disabled because of a motorcycle accident and several motor vehicle accidents. He worked in this parents’ business but was no longer working. With investment income, his annual income was $60,000. His assets, excluding a share of the estate, had a value exceeding $4 million. The trial judge found that the will did not make adequate provision for the proper maintenance and support of the daughter. The son argued the judge erred in this conclusion, erred in determining what would be adequate, just and equitable in the circumstances, and in particular erred in reducing his share of the estate to benefit the daughter. The judge recognized the merit of respecting the testator’s wishes and interfering with them only so far as the Wills Act required. He thus cut the gift to each grandson in half, reduced the son’s share by one‑third and ordered that the daughter was entitled to one‑half of the estate.

HELD: Appeal allowed in part. The judge’s findings of fact were well founded and undermined the son’s submission that the daughter’s history supported giving her a relatively reduced share of the estate. The will did not provide adequately for her. It gave her an under‑share as between herself and her brother and compared to her children, considering the moral obligation owed to her under the Act and the absence of such an obligation owed to the grandchildren. Given the size of the estate, by equalizing the gifts to these three persons, the will failed to give full effect to the testator’s moral obligation to his daughter. Reducing the son’s share below that of the daughter’s, however, impinged on the testator’s autonomy to an unnecessary degree. It was open to the testator to leave the son a sizable share of his estate, even given the financial advantages he gained outside of the will, considering the son had a role in contributing to the building of the estate. An equal division of the residue as between the son and daughter, after allowing for the two bequests to the grandsons, would allow for an adequate, just and equitable provision for the daughter. This division left the son with nearly half the estate, provided a significant lump sum for the grandchildren, and allowed for relief for the daughter from her ongoing straitened circumstance.

Scurek v. Scurek, [2021] B.C.J. No. 920, British Columbia Court of Appeal, M.E. Saunders, G. Dickson and J. DeWitt-Van Oosten JJ.A., April 30, 2021. Digest No. TLD-June142021004