Tom V. Tang, 2023 BCCA 221: Subjective Reasons And The Objectively Reasonable Will-Maker

• Law Firm: Clark Wilson LLP
• Subject Matter: Family and Matrimonial, Family Law, Divorce, Wills/ Intestacy/ Estate Planning
• Author: Ms Polly Storey
• Published date: 12 June 2023

The Court of Appeal for British Columbia recently had an opportunity to consider, and resolve, a question that has been the source of uncertainty for many years: when will a will-maker's reasons for favouring (or disinheriting) their adult child be upheld?

In Tom v. Tang, 2023 BCCA 221, Justice Fenlon, for the Court, clarified that a will-maker's moral duty to adult children must be assessed using the objective standard of the reasonable will-maker.

Adequate, Just and Equitable Provision from Estate

In British Columbia, will-makers owe a duty to make adequate, just, and equitable provision for their surviving spouses and children. Where a person dies leaving a Will that their surviving family member considers falls below that standard, the surviving spouse or child may file a claim to vary the Will pursuant to s. 60 of the Wills, Estates and Succession Act, SBC 2009:

Maintenance from estate

60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker's estate for the spouse or children.

Legal and Moral Obligations

Since 1994, the law has been clear that whether a will-maker has made adequate, just, and equitable provision is to be assessed with reference to a will-maker's legal obligations and moral obligations. These obligations were explained by the Supreme Court of Canada in Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 SCR 807:

1. Legal obligations are those that a will-maker owed during their lifetime. A common example is where a will-maker was in a spousal relationship on death. Whether a will-maker has made adequate, just, and equitable provision for their surviving spouse is assessed with reference to what the surviving spouse would have been entitled to under family property and spousal support legislation, had the relationship ended by separation rather than through death.¹ Will-makers also owe legal obligations to maintain their minor children, and where provision for an adult independent child is at issue, legal obligations may be found in a claim for unjust enrichment.

2. Moral obligations are found in "society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards" (Tataryn at p. 821). Various factors have developed in the case law to assess the existence and strength of a will-maker's moral obligations to their adult children and surviving spouse, including in cases of blended families.²

In considering whether a will-maker has met their moral obligations to make adequate, just, and equitable provision, the Court will analyze the will-maker's reasons for making the distributions contained in the Will.

"Valid" and "Rational" Reasons?

Where a will-maker documents their reasons for favouring...