Dunsdon v. Dunsdon, 2012 BCSC 1274

The 2012 decision of Dunsdon v. Dunsdon, 2012 BCSC 1274 is frequently cited in cases involving claims by adult children to vary a parent’s will.

Under section 60 of the Wills, Estates, and Succession Act, the Court may vary a will in favour of a spouse or child in such amount as the Court thinks is adequate, just and equitable in the circumstances. Because a will-maker has both legal and moral obligations to their spouse and dependent children, claims by those parties will be periodized over claims by independent adult children, who are only owed a moral obligation.

In this case, the Court summarizes the test established in the seminal case of Tataryn v. Tataryn; a 1994 decision of the Supreme Court of Canada, which continues to be the leading case on wills variation in British Columbia. The Court in Dunsdon supplemented that test with a list of considerations that can be applied when the Court is considering claims by independent adult children.

The test established in Tatyrn looks at whether the provisions made for a spouse or child are adequate, just, and equitable. The adequacy of the provisions is measured by considering whether, in the view of current social, legal, and moral norms, the will-maker acted as a judicious parent or spouse would be expected to act.

The Tatyrn decision also confirms that, while testamentary autonomy should be protected to the extent possible, it is outweighed by the requirement that adequate, just, and equitable provisions be made for spouses and children. The decision also indicates that if a will-maker’s estate is large enough, an amount should be provided to satisfy moral claims by independent adult children.

In Dunsdon, the Court follows the test set out in Tatryn and provides a list of considerations that have been accepted as evidence to inform the extent of a will-maker’s moral obligation to their independent adult children. These are the:

  • 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.

Both the Tatryn and Dunsdon decisions confirm that there is no single correct way to divide an estate and that an adequate, just, and equitable division will not necessarily be an equal division between beneficiaries.

Although Dunsdon was decided under the former Wills Variation Act, which was replaced by the Wills, Estates, and Succession Act in 2014, the principles still apply.

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