Recent BC Court Decision Clarifies Testator’s Ability to Make Uneven Wealth Distributions to Adult Children

[ Photo by Scott Graham on Unsplash]

What happens when a parent passes away and leaves more for one child than another? In the recent case of Tom v Tang, 2023 BCCA 221, the Court of Appeal for British Columbia (BCCA) has provided some clarity.

A few weeks before Mrs. Tom passed away, she decided to alter her will so that 85% went to two of her children who were particularly caring in her final years. The remaining 15% of the will would be divided amongst the other three children. These three challenged the will, claiming they were entitled to a larger share.

Section 60 of the Wills, Estates and Succession Act (WESA) says that parents must provide for their children in a way that is “adequate, just and equitable.” In this case, the BCCA found that Mrs. Tom failed to do this. Therefore, the will was adjusted to a 60/40 split between the two groups of children.

What Does This Mean?

In the past, Courts have struggled to balance the conflicting principles of respecting a will-maker’s wishes and the requirements in Section 60 of WESA. By significantly altering Mrs. Tom’s will, the BCCA has shown that they are comfortable overriding a will-maker’s directions to ensure their children are provided for.

Another way of wording this balance is as a subjective versus objective standard. The BCCA clarified that, while a will-maker’s reasons are important in deciding what the children should be entitled to, their decision will ultimately be held to an objectively reasonable parent by societal standards. If an objectively reasonable parent would have made a different decision, the Court is empowered to vary the will. This is true even if the will-maker’s subjective reasons were valid and rational.

In the future, parents should be conscious of the difficulties in favouring one child over another in their will. Children, on the other hand, should understand the strong claims they have if their parents have not provided for them in their wills.

If you have questions about what this might mean for you, please contact Waterstone’s Wills and Estates Practice Group.