I’m looking forward to appearing in the Supreme Court of BC tomorrow to obtain court approval of a comprehensive Settlement Agreement reached between parties to a wills variation claim, pursuant to s. 60 of the Wills, Estates and Succession Act. Although a complete and final settlement of the claim has been reached among all parties, pursuant to Rule 20-2(17) of the Supreme Court Civil Rules, a settlement is not binding without the approval of this Court if a party is under a legal disability.
As referenced above, the jurisdiction of the Court to vary a will is derived from Division 6 of the Wills, Estates and Succession Act. Section 60 of the Act states:
Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision of the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
In the leading Supreme Court of Canada decision Tataryn v. Tataryn, the court concluded that the objective is to allow for judicial interference, at its discretion, with testamentary freedom where a spouse or child has not been left with adequate, just and equitable provision. The basic approach in Tataryn was to assess, objectively, the legal norms and moral norms owed by the deceased to his or her spouse and/or children. The Court held that the test is that of a judicious parent, assessed in view of current societal legal norms and moral norms. Tataryn also held that all legal and moral claims against an Estate should be satisfied if the size of the Estate permits.
In this case, counsel and the parties were able to work together collaboratively to arrive at a resolution of this estate matter that met the needs and objectives of all the parties. The Public Guardian and Trustee had no objection to the proposed variation of the Will. Thinking positively that we will be successful in obtaining court approval tomorrow, this will be a favourable outcome for all the parties concerned.