No, I think you meant to say this…

As we have discussed, there are fewer topics in the field of wills and trusts litigation that incite more outrage than the idea that the court can vary your will after your death. But the corollary from that concept is that the court will try to find a way to uphold your wishes. In some cases, ensuring your estate passes in the way you want may mean changing the terms of your will. This counterintuitive idea was at the centre of Kelly v. Bell, 2012 BCSC 841, recently decided by the Supreme Court of British Columbia.

We have discussed the Wills Variation Act on this blog. In a nutshell, the British Columbia law allows a family member to bring an application to court to challenge the provisions of a will. The court has a wide discretion to vary that will as it sees fit based generally on two principles: testamentary autonomy, or a respect for the testator’s wishes as expressed in the will, and adequate, just and equitable provision for the testators family members.

Cases where court’s vary a will typically steal the limelight and cause the outrage as people ask, why shouldn’t I be able to cut my ne’er do well son or daughter out of the will? But there are many examples where the court strives to do the opposite: to interpret and uphold the wishes of the testator.

That is what happened in the recent judgment of the Kelly case. The Plaintiff, Ms. Kelly and the Defendant, Mr. Bell were siblings and beneficiaries under their mother’s will. As is often the case in cases that involve people who live in the lower mainland, the vast majority of the estate value was tied up in real estate in the deceased mother’s home (the “Home”). The will provided that Mr. Bell received the home. The rest of the estate was to be split by Mr. Bell and his sister, Ms. Kelly, in equal shares. Ms. Kelly brought an action to vary the will.

The court reviewed the family’s history and found, among other things:

  • the plaintiff (Ms. Kelly) had a university education and was retired at the time of the action;
  • the plaintiff lived in an unencumbered home with her husband;
  • the defendant (Mr. Bell) lived in the Home, rent free, on and off during his life and was living there at the time of the action
  • the defendant had limited income in part due to the time he spent caring for his mother;
  • the plaintiff’s relationship with her parents was “strained in early years” and the plaintiff had excluded her parents from her wedding; and
  • the defendant suffered from a disability and the deceased mother had worried that his employment opportunities were limited.

It was apparent that the deceased mother had planned this unequal distribution for some time before her death in 2008. The court noted that the deceased swore a statutory declaration in 1980 setting out her reasons for the unequal distribution of the estate as among her two children. In that declaration she explained her choice to leave the home to her son citing his lack of employment opportunities and lack of support in comparison to her daughter who had a university education and a husband. The mother also cited her daughter’s “wish to disassociate herself from our family and has caused great pain and suffering to her father and myself.”

The court sought to uphold the deceased mother’s wishes as set out in the declaration and will, finding:

Ordinarily, a contemporary judicious parent would distribute his or her estate equally amongst his or her adult independent children. However, it is open in law for a testator to conclude that a child’s conduct may disentitle her to share equally in the distribution of an estate, provided such conclusion is based on accurate and rational reasons.

The law does not require that the reasons of the testator be justifiable, but they must be valid in the sense of being based on fact, and rational in the sense that there is a logical connection between the reasons and the act of disinheritance.

However, to do so, the court found it would have to vary the will. The court noted that the mother believed the House to be worth about $1 million at the time she last reviewed her will. On her death, the House had an assessed value of $2,058,000 — obviously a huge increase. The remainder of the estate was worth $860,000. Thus, if the brother kept the house and the brother and sister split the rest equally the brother would take 88% of the estate.

Doing some quick math, the court found that, if the home was worth what the mother believed it to be worth the estate would be split 77% to the son and 23% to the daughter. The court to those numbers and split the estate on a pro rata basis, allowing the Mr. Bell to keep the home and a smaller portion of the rest of the estate and Ms. Kelly to take a larger portion of the rest of the estate to reflect the increase in the home’s value.

Doing so, the court was driven primarily by an intent to uphold the testementary intention of the deceased mother.

About Darren D. Stewart

Darren Stewart practises general corporate commercial litigation, with an emphasis on wills, estates and trust litigation, contract and lease disputes, transportation matters and personal injury litigation. He has appeared before the B.C. Provincial Court and the B.C. Supreme Court.
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