Estate Planning

Dependant Support Expanded

By Hull and Hull LLP

Just one month after I blogged about a B.C. Supreme Court Judge who varied a father's Will to undo the exclusion of his four daughters in favour of his only son, another B.C. Court judge has reportedly varied the Will of a deceased mother, Mrs. Lougheed, to give her daughter, Kelly, an additional $5.5-million despite the objections of the father.

The award is one of the largest dependant's relief orders ever made in B.C.  In the decision, the court reviewed in detail the privileged life of the family, and found the daughter enjoyed 'a harmonious and loving relationship from the time of [her] birth until [her mother's] death. There were no strong disagreements or even riffs between mother and daughter, much less periods of acrimony or estrangement. Their bond was natural and deep.'

As the will did not reflect the close relationship of mother and daughter (the bulk of the mother's $20-million estate was given to her spouse), the Judge found that '...the testamentary provision made for Kelly under the 1989 Will falls below the moral obligation of a contemporary judicious parent in all of the objectively assessed circumstances.'  The judge concluded that it was incumbent on the court to exercise its discretion to vary the Will 'to provide the justice to Kelly that the 1989 Will failed to achieve, commensurate with [Ms. Lougheed's] moral obligation.'

If this decision signals the developing and broadening view of the bench in B.C., we may start to see a whole new wave of dependant support claims brought not on the ground of actual financial support but on the ground of moral obligation.  I wonder...will this "moral obligation" foundation for a claim now become an easier method in which to upset a testator's bequests than bringing a Will challenge or other type of claim? Is fairness trumping testamentary intention? Will this ultimately dissuade people from making Wills when more and more often wishes expressed therein are not carried out? 

As I noted in my earlier blog, the B.C. legislation is unique in Canada.  While a general trend developing in Ontario is to consider moral obligations (see Tataryn and Cummings), this is treated as but one factor to consider in the context of support claims.   So I think it is unlikely that we will see this kind of award made outside of B.C. anytime soon.  Time will tell I suppose... 

Have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini.

Full post as published by Toronto Estate Law Blog on January 12, 2011 (boomark / email).