The recent wills variation case of Scurek v. Scurek, 2020 BCSC 450 considers whether a testator can discharge his moral obligations to his adult daughter by benefitting her children at her expense.
In Scurek, the testator, Joseph, died leaving a will that divided his estate unequally among his son, daughter, and her two sons. The son, Peter, was to receive ½ of the residue of the estate. The daughter, Lydia, was to receive 1/6. Her two sons, John and James, were also to receive 1/6 each.
At the time of his death, Joseph’s estate was valued at $1.9 million and consisted primarily of real estate, bank and investment accounts, and personal effects. However, he also owned considerable assets that passed outside his estate. These other assets, valued at nearly $1 million, all passed to Peter by right of survivorship.
As a result of her unequal treatment, Lydia brought a claim to vary her father’s will. His will being silent as to why Lydia was not treated equally, the Court was left to speculate and try to infer the answer from the evidence as a whole.
At trial, the Court heard how Joseph and his wife, Slavi, who had predeceased him, had immigrated to Canada from Slovenia. They started their own business and were very successful. They assisted their children financially although they favoured Peter. While Lydia had an, at times, difficult relationship with her mother, she had a good relationship with her father up until he died.
Much time was spent considering Peter and Lydia’s respective circumstances. Peter had worked at his parent’s business for almost 30 years. Unfortunately, he was injured in several motor vehicle collisions that resulted in him sustaining permanent cognitive difficulties. At the time of trial, he was unable to work and receiving a disability pension. Still, he had managed to acquire significant assets through his life which, at trial, totalled more than $3 million. Between his pension and rental income, his annual income was approximately $65,000. He also had a wife who worked and took care of him.
Conversely, Lydia only had a Grade 9 education in part because she was briefly kicked out of the family home by her mother when she was 16. Her work history consisted of various entry level jobs. Nevertheless, she was a hard worker. She divorced the father of John and James in the early 1990s and gone on to have several more unsuccessful relationships. She required financial assistance from her parents at various points throughout her life and struggled with alcoholism for a period of time. Unfortunately, she, too, was injured in a motor vehicle collision and rendered unable to work. At trial, she had no significant assets and her annual income was only slightly more than $10,000.
Lydia’s position was that Joseph’s will should be varied to the extent that she receive ½ of the Estate with Peter, John, and James each receiving 1/6. Peter’s position was that the will should not be varied, but if it were that any increase in Lydia’s share should come out of John and James’. John and James took the opposite position to Peter saying that any increase in Lydia’s share should come out of Peter’s.
In reaching its decision that Joseph’s will did not make adequate provision for the maintenance and support of Lydia, the Court focused on the great disparities being their respective financial positions and need for support. As to why Lydia was given less, the Court rejected the suggestion that it was out of concern that she would “waste” her inheritance.
One novel argument advanced by Peter was that he and Lydia had been treated equally if the Court considered the shares to be received by John and James “notionally” belonged to Lydia. In rejecting this argument, the Court said:
 I do not agree with this characterization. As I stated at the outset of these reasons, in my view the testator cannot discharge his moral obligation to his child by benefitting her children at her expense. The plain fact is that under the Will Peter receives one-half of the estate, and Lydia one-sixth. The fact that one-third of the estate is allocated to Lydia’s sons is of no material benefit to her. They are not obliged to support her, and they can be expected to prioritize their own needs.
In the end, the Court varied Joseph’s will to give ½ to Lydia, 2/6 to Peter, and 1/12 each to John and James.
This case establishes that a testator cannot bypass his moral obligations to a child by benefitting his grandchildren.