To the “Viktor” go the spoils…

To the “Viktor” go the spoils…. that is, anywhere but BC.

Only in BC can an adult child challenge his/her parents’ will on the basis that it is not “fair.” Our courts can, and regularly do, vary wills on the basis that the provisions are unfair to a particular person in a will, or more specifically, when the provisions are not “adequate, just and equitable.” This statute means that a will that might be otherwise unassailable in other jurisdictions is open for challenge in BC.

The modern basis for varying wills relies on a 1996 Supreme Court of Canada decision (Tataryn, …) and has not yet been reconsidered by our country’s highest court. Tataryn, as with many SCC decisions, has plenty of fodder for parties to argue all sides of a wills challenge. Our BC courts have grappled with interpreting and applying Tatary, but because each case is so fact driven and involves the discretion of the court, it is often difficult to predict a likely outcome.

In Sharma v. Sharma Estate, 2016 BCSC 1397, the mother left her entire estate to Victor (one of her sons) and nothing to her 3 other children. Her fourth child died prior to the mother’s death, why am I including this? The mother set out reasons right in her will for disinheriting her other children; that she had given “plenty of monies and other things” to her other 3 children, but not to the favoured son.

The disinherited children (the plaintiffs) claimed their mother’s reasons were incorrect, that they had not been given substantial gifts. They further argued that Victor was the one who had received monies and other things and that their mother had been influenced by Victor who was unsophisticated and confused. Many wills challenges typically include claims by the disappointed beneficiaries that there is undue influence, of some degree.

The facts are fairly unique in this case. Victor had a checkered past, to say the least. He lived with his mother in her home — when he was not in jail. She paid him a stipend of $600/month. Victor ran a grow-op out of the home which was shut down by the police in 2012, due to its inhabitability. Mom went from the hospital to a long-term facility and died in the same year. Victor’s version of events was that he was a devoted, caring son who assisted his mother, and his siblings were estranged from Mom and received many gifts during his lifetime.

The Judge had a great deal of difficulty with the evidence. Credibility on the part of all the children was in question, given the self-interests of each. The judge was left with the daunting task of considering the evidence as a “whole” and determining what has been proven on a balance of probabilities. The Judge found that with respect to the plaintiffs, Mom did not have “any” valid reason to disinherit her other children when she wrote her 2007 will. The judge also found that Victor had been more than compensated for his “assistance” of Mom by allowing him to live rent-free with her for most of his adult life. On the evidence, the judge could not make a finding of undue influence. The judge reapportioned the will, making an approximate equal distribution of the will between the three children (a 33/34/33 split). Had Mom died without a will in BC, the distribution would have been the same. Had Mom died in Alberta or Saskatchewan, or anywhere else in Canada with this will, Victor would have taken all.