In the case of Clucas v. Royal Trust Corporation of Canada, 1999 CanLII 5519 (BCSC), the will-maker acknowledged the potential claim to vary her Will due to the exclusion of her adult child and addressed this in her Will. The estate was valued at approximately $440,000. She left her child a life interest in earnings from one-third of the residue of her estate (approximately $7,000-$8,000 per year), without power to encroach on capital. The remaining two-thirds of the estate had been left to the will-maker’s grandchildren. The child suffered from Parkinson’s disease, was in a chronic care facility, and was unable to work. The court determined that the Will had not made “adequate provision for the proper maintenance and support of” the plaintiff, and varied the Will to convert the income of the Plaintiff’s one-third of the residue of the estate to a lump sum payment of $200,000. The Plaintiff and the will-maker did not share a happy relationship, but he was not estranged. The deceased had no legal obligation to provide for her son as an adult independent child, but there was a moral obligation.
In this case, the plaintiff had a significant amount of costs that he could not cover himself, due to illness. Without bringing this case to court, he and his family would have continued to struggle to make ends meet. The judge considered the costs of his medical equipment and how this variation claim could significantly improve his life. This exemplifies the “moral” claims in the estate litigation process: despite being an independent adult, a parent may owe a moral obligation to provide for their child, when considering all relevant circumstances.
To determine if your Will meets its legal and moral obligations according to the court, Hammerberg’s Wills, Estate Planning and Trusts legal team can help you. If you would like to challenge a Will, our Estate Litigation lawyers can advise you of your legal options and best strategies.