In Canada, one or our most important rights is to be able to leave our stuff to whomever we want. It is called “testamentary autonomy,” a testament being the old word for a will, and autonomy being the right to decide for yourself.
We are actually a bit unusual that way. Many countries, in particular those in Europe, severely limit what a person is allowed to do in their will. Often preference has to be given to offspring.
Under our Common Law, though, we are allowed to make a will that sets out who gets our money and our possessions when we die. For the most part, we can do what we want, but there are limits. Many places have rules that say that if there is someone who was dependent on the deceased for their financial well-being then there is an obligation on the deceased to provide for that person in his or her will.
Nowhere is that more so than in British Columbia, where there is a specific law, the Wills Variation Act, (“WVA”) that lets a disappointed heir sue the estate. In addition, our courts (right up to the Supreme Court of Canada) have said that unless there is a clear, valid and accurate reason given by the deceased for leaving out an heir who has either a legal or a moral right to part of the estate, the heir will win. This clearly surprises (and offends) many people.
Two recent British Columbia Supreme Court decisions have highlighted how our courts interpret the WVA. A lot of commentary was written, both by news reporters and in online comments. Much of the commentary expressed outrage that a judge would presume to rearrange someone’s will, and questioned whether such a thing should even be permitted. There were even comments that the judge in one of the cases should be sanctioned or dismissed, as if he had made it up as he went along.
Here is why those commentators need to give their heads a shake. The laws were enacted by the government, and if you don’t like a law, don’t blame the judge, get out there and vote next time there is an election.
So here is what happened in those two cases I mentioned.
The first decision came out in September, 2010, and involved a deceased father (Weidman) who left his entire estate (just over $1 Million) to one of his daughters. He had four other children (one of them a step-son) none of whom got a penny.
The other decision came out in November, 2010, and also involved a deceased father (Werbenuk) who left his entire estate (about $450,000) to his only son, thereby excluding his four daughters.
In both cases, there was evidence that the fathers had been difficult (even violent) during their lives. In both cases the children had been more or less pushed away from relationships with their fathers, who then justified not leaving anything to the kids by that lack of a relationship.
What really strikes me about both cases, though, is how the family’s dirty laundry was aired in the very public forum of our courts. We learned about abuse, alcoholism, laziness, favouritism, and all the other ugliness than can exist in families. We even learned about everyone’s medical ailments, history and prognosis.
We also got to read about everyone’s financial situation. I now know what all of the siblings earned in each case during the four or five years before the legal decision. Probably not what anyone had in mind!
So what were the results? In both cases the wills were varied. Why? Because clearly neither of the fathers had good advice about what their legal and moral obligations were under BC law, or if they did, they ignored it. In the Weidman case, the father hadn’t revised his will in the 24 years between the time he wrote it and the time he died. Obviously things can change in that length of time, and his stated reasons for disinheriting some of his children no longer held up. The daughter who go everything was no longer the only one in need.
In the Werbenuk case, the reasons the father gave for leaving everything to his son were not even true, and yet many people felt compelled to comment that the daughters were greedy and grasping. They felt sorry for the poor son whose share was reduced from 100% to one fifth. Poor son, alright…he had a free ride by living in his parent’s house rent free for many years while his sisters had been forced to wash their father’s feet (literally!).
What’s the take-away? Unless you’d like the entire family history to show up in a judgment of the court, make sure your will is fair and up to date. That does not mean equal, necessarily, but if not, your reasons should be valid. And if you have been left out of your parent’s will, by all means contest it, but try to do so in a mediation so that the results don’t end up in a judgement for everyone to read.
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