Moral Duties: How BC Courts Can Vary a Will for Adult Children

When to Write a Will: Estate Planning Vancouver

Moral Duties and WESA

Equality & Fairness in Making a Will: How BC Courts Can Vary a Will for Adult Children 

The law regarding when it is appropriate for a Court to vary the will of a deceased to make a different provision for a spouse or adult, independent child considers both the legal duty owed and the moral duty owed. It has been established by our Court (including the Supreme Court of Canada) that adult independent children are not owed a legal duty but that they may be owed a Moral duty by their deceased parents.

The Supreme Court of British Columbia recently discussed some of the considerations that Judge must review when assessing whether there is a moral duty owed. In BH v. JH, 2015 BCSC 1551, the Court cited Madam Justice Ballance in Dunsdon v. Dunsdon, 2012 BCSC 1274 (CanLII) and outlined the factors as follows:

Considerations a BC Court Must Review When Assessing Moral Duty
  • relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
  • size of the estate;
  • contributions by the claimant;
  • reasonably held expectations of the claimant;
  • standard of living of the testator and claimant;
  • gifts and benefits made by the testator outside the will;
  • testator’s reasons for disinheriting;
  • financial need and other personal circumstances, including disability, of the claimant;
  • misconduct or poor character of the claimant;
  • competing claimants and other beneficiaries.

Although there a number of factors set out above, none are individually determinative of the result.

Related Information on BC Wills Variation:
Contact our Will Variation Lawyers

If you are a spouse or child of a deceased person and believe that you have not been adequately provided for in the will or if you are considering challenging a will in Vancouver BC, please contact the Kushner Law Group today to schedule a consultation.

Schedule a complimentary consultation here or call us at 604-629-0432


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