Skipping the children to benefit the grandchildren – What you need to know about Wills Variation Claims

Lois Wyse once said:  “If I had known how wonderful it would be to have grandchildren, I’d have them first”.  While this may be a tongue in the cheek way to express our love for our grandchildren, it is clear that providing for grandchildren at the expense of children in a Will may result in a variation of the Will in favour of the disinherited child.

In certain circumstances, the Wills Variation Act allows courts to modify a Will after a person’s death.  Having a Will is thus not necessarily a guarantee that your estate will be distributed according to your intentions.

If a testator dies leaving a Will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may order that adequate, just and equitable provision be made for them.

In a recent case, Scurek v. Scurek, 2020 BCSC 450, the court considered whether a testator can discharge his moral obligation to his adult daughter by benefiting her sons at her expense.  The deceased had two adult children, a son and a daughter.  The daughter had two sons, the deceased’s grandsons.

The Will provided that the residue of the estate be divided as follows:  50% to the son, and 50% divided into three equal shares between the daughter and her two sons.  The daughter and her sons would receive 1/6 each.

The daughter had no significant assets, was disabled and unemployable.  The son, while unable to work due to disability, was financially secure.  He also received property passing to him outside the estate.  The daughter (Plaintiff) argued that the proportions of the estate that she and her brother would receive should be reversed from that set out in the Will, so that she would receive 50% and her brother and sons would receive 1/6 each.

The case turned on the moral obligation, as opposed to the legal obligation the father had towards his daughter.  The Court found that, when the Will was made and when the father died, he ought to have recognized that his daughter was impecunious with little or no prospect of improving her financial situation.  He ought to have recognized that a 1/6 share of the estate could not conceivably be sufficient to provide the substantial financial support that his daughter would need.

The Court also found that the father should have recognized that his son was financially secure and comfortable, even without an inheritance.  He had substantial assets and no need.  In addition, he was married to a stable and supportive person who had an independent income.

By contrast, the daughter had been unfortunate in financial matters.  Her personal relationships did not work out.  Although she was industrious and worked hard, she earned low wages at all times.  She had two sons to take care of, at least until they went to live with their father.  She was unable to accumulate assets.

It was apparent that the deceased wanted to benefit his grandsons.  However, grandsons have no moral claims under the statute.  The Court found that the deceased could not discharge his moral obligation to his daughter by benefitting her children at her expense.  The fact that 1/3 of the estate was allocated to the grandsons, was of no material benefit to their mother and they were not obliged to support her.

The court allocated the estate assets as follows:  The daughter would get 50%, the son 2/6 and the grandsons 1/12 each.

Wills variation cases are fact specific.  Testators are free to provide for their grandchildren, but generally not at the expense of their own children.  A testator who does not discharge his or her moral obligation to a child runs the risk of the variation of the Will.

The courts have broad discretion to vary Wills.  If you have not been sufficiently provided for by a spouse or a parent in a Will, you may have a viable case.  We are ready to assist you in determining the strengths of your case.