Werbenuk v. Werbenuk 2010 BCSC 1678, a decision of the British Columbia Supreme Court with respect to an application for a variation of a will under the Wills Variation Act, R.S.B.C. 1996, c. 490, received some media attention last week upon its release.  The facts make for good headlines:  William Werbenuk had a child, Virginia, from his first marriage, who was raised by her mother without his support.  He later remarried and had one son, Randall, and three surviving daughters, Lorraine, Patricia, and Carrie.  Werbenuk died at the age of 86, leaving a last will and testament that named Randall as his estate trustee and sole beneficiary.  Werbenuk’s Will indicated that he had disinherited Lorraine and Patricia because they had already received monetary gifts from him, and that he had disinherited his  “third daughter” (presumed to be Carrie) because she had “nothing to do” with him.  He gave no reasons for disinheriting Virginia.  Werbenuk’s Will also explained that Randall looked after him and “so he deserves more.”

At trial, the daughters put forward evidence of their father’s reign of terror over them while they were growing up, which included evidence of his corporal punishment.  Despite their brutal upbringing, though, the daughters all stayed in contact with Werbenuk, and even cared for him during his twilight years.

Justice Wong granted the application, finding that the provisions of the Will were not those of a testator acting in accordance with society’s reasonable expectations of what a judicious parent would do.  In disinheriting his daughters, Werbenuk failed to consider their circumstances and needs, and he overlooked their contributions to his well-being.  As such, Justice Wong found that the just and equitable distribution of the estate required that Carrie and Lorraine receive 23 and 22 per cent each; Patricia and Randall receive 20 per cent each; and Virginia, who was not in financial need, receive 15 per cent.

One important point to note is that the Wills Variation Act has no exact counterpart in Ontario.  While the dependants’ support provisions contained in Ontario’s Succession Law Reform Act, R.S.O. 1990 c. S.26 (“SLRA”)  are similar to the Wills Variation Act, the SLRA requires the deceased to have been providing support or to have been under a legal obligation to provide support to the child as a precondition to obtaining support. That is not the case in British Columbia, as Werbenuk v. Werbenuk demonstrates.

Regardless of these legislative differences, Ontario courts are still required to take into account a testator’s “moral obligations” in considering dependants’ support applications: Cummings. v. Cummings 2004 CanLII 9339 (ON C.A.).  For this reason, it may be that in the appropriate case, Justice Wong’s rather striking proposition that an abusive parent should recognize that he has “a moral obligation to make amends for [earlier parental abuse] through the provisions of his will” may get some traction in this province, too.

Thanks for reading.

Angelique Moss