Today’s blog post was written by Latoya Brown, an Associate at Fasken LLP.

The discussion of discriminatory wills continues with a new case out of the British Columbia Supreme Court. In Lam v Law Estate, 2024 BCSC 156, the court varied a testatrix’s will on the reasoning that the testatrix’s bias did not meet contemporary standards of fairness.

The testatrix was survived by her two independent adult children, her son William and her daughter Ginny. The evidence in this case established that the testatrix held traditional beliefs that favoured her son over her daughter because of his gender, and believed sons were entitled to most or all of a parent’s estate—rather than daughters.

Background

In 1999 the testatrix and her husband made mirror wills (hers being the “1999 Will”). Each will appointed the other spouse as executor, trustee and sole beneficiary of the other’s estate, with a giftover equally between William and Ginny. After the death of her husband, the testatrix executed a new will in 2004 (the “2004 Will”) that gifted her entire estate to her son, save for a $2000.00 gift to her daughter. The testatrix indicated in the 2004 Will that the reason that Ginny was receiving this minimal bequest was because Ginny had “already received” funds totalling $120,000.00. However, following the 2004 Will, the testatrix then made several inter vivos transfers—including the transfer of the family home—from herself as sole owner into a joint ownership arrangement with her son William. The testatrix also sold two of her rental properties and gave approximately half of the net proceeds to William. The testatrix revised her will in 2018 (the “2018 Will”) again because she allegedly feared Ginny would sue William due to the unequal distribution. In the 2018 Will, the testatrix gifted a rental property to William and gifted another rental property to both William and Ginny equally.

The total value of the gifts to William from his mother, when valued at the time of her death, amounted to a total sum of approximately $2,986,611.71 of their mother’s estate (i.e., 82.6% of the estate’s value). It was also established that although both children assisted with the testatrix’s health care needs, as the testatrix aged Ginny took on more of the time and effort required for medical care than her brother or anyone else.

The Will Variation

The British Columbia Supreme Court found that there was a significant disparity between the inter vivos gifts given to William and Ginny. The court relied on section 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”) that provides:

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.

To interpret the meaning of “proper maintenance and support” described in the WESA, the court looked to Walker v. McDermott, [1931] S.C.R. 94 (“Walker”). Despite Ginny being an independent adult, Walker affirmed that “proper maintenance and support” is not limited to the necessities of life but is to be determined in light of a “variety of circumstances”.[1] The court also relied on the Supreme Court of Canada case, Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 in which the Supreme Court of Canada declared that financial need is not a necessary condition for a successful wills variation claim brought by an independent adult child. Furthermore, the court cited the decision in Tom v. Tang, 2023 BCCA 221 which looked at various other cases dealing with this issue in concluding that they:

[…] do not stand for the principle that a testator’s unequal treatment of adult children must be deferred to, without regard to the objective standard of the reasonable testator and current social norms, as long as the subjective reasons given for the unequal distribution are valid and rational. These cases recognize instead that a testator’s moral duty to adult children must be assessed from the viewpoint of a reasonable testator, and that the moral duty may be negated where there is just cause.[2]

In light of these authorities the BC Supreme Court concluded that it was not required to give deference to the testator’s autonomy, and was persuaded that the 2018 Will must be varied to address the gender-based bias subsumed within the testator’s distribution of her assets and estate. “Contemporary justice does not countenance preferential treatment towards certain children over others based on their gender.”[3]

The Ontario Perspective

While Ontario’s Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) does not contain a provision identical to section 60 of WESA, section 58 does allow for claims by “dependants”:

Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.

In this case, dependants include spouses (both married and common law), children and even parents. The key difference between WESA and the SLRA is that under WESA spouses and children have an inherent right to make a claim for a “just and equitable” variation of a will—even if they’re not dependents. Under the SLRA, this inherent right does not exist; rather, the spouse and/or children must be able to demonstrate both that they were dependent and that the deceased did not make “adequate provision” for their support.

In any event, it currently seems unlikely that Lam would be followed in Ontario. There is Ontario jurisprudence that has upheld testamentary freedom, even where discrimination was seen to be the basis of a testamentary decision. In Spence v BMO Trust Company, 2016 ONCA 196, despite evidence of the testator removing his daughter as a beneficiary of his will due to racially-motivated reasons (she had a child with a man of a different race), the Ontario Court of Appeal made it clear that “absent valid legislative provision to the contrary, the common law principle of testamentary freedom thus protects the testator’s right to unconditionally dispose of her property and choose her beneficiaries as she wishes, even on discriminatory grounds.”[4]

The debate continues on discriminatory wills: in cases where it is clear that the testator has drafted their will based on discriminatory principles, should the court intervene, or should it give deference to testamentary freedom? As more cases arise on this topic, it will be interesting to see how the law develops from jurisdiction to jurisdiction.

[1] Walker v. McDermott, 1931 S.C.R. 94 at para 3.

[2] Lam v Law Estate, 2024 BCSC 156 at para 162.

[3] Ibid at para 165.

[4] Spence v BMO Trust Company, 2016 ONCA 196 at para 73.