Dissecting “Adequate, Just and Equitable” Provisions in a Will

WESA’s Section 60 refers to the “adequate, just and equitable” provision – but what exactly does this mean? The Supreme Court of Canada’s ruling in Tataryn v. Tataryn Estate serves as the leading case and the governing authority on BC wills variation. The Court must ask itself whether the will makes adequate provision for the claimant and if not, order what is adequate, just, and equitable, in the circumstances.

Evaluating Reasons for Disinheritance or Unequal Division of an Estate

The court may take into account the will-maker’s reasons for disinheritance or for unequal division among beneficiaries when determining what is “adequate, just and equitable”. Evidence regarding the will-maker’s reasons for specific gifts in the will, or for making less than adequate provision for the Wills variation claimant, may be presented under Section 62 of WESA. In some cases, the will-maker’s express or inferred reasons may negate any moral obligation owed by the will-maker. The BC Courts’ approach to this starts with the consideration of the Court of Appeal decision in Bell v. Roy Estate.

The Doctrine of “Valid and Rational Reasons”

In the case of Bell, the will-maker left a will that unequally distributed her estate among her children. The Court of Appeal held that if the court finds the will-maker’s reasons for a disinheritance to be valid and rational, the will-maker’s moral duty towards that child is negated. The will-maker’s reasons for disinheriting a child need not be “justifiable”, but rather, the law only requires that the reasons are valid, meaning based on fact, and rational, signifying that there is a logical connection between them and the act of disinheritance.

The Intersection of Case Law and Tataryn

A complex issue arises when comparing the doctrine of valid and rational reasons (as used in Bell and Kelly) with the principles established in Tataryn. Tataryn emphasizes that a will-maker’s moral duty must be assessed objectively from the standpoint of what a reasonable parent would do in the circumstances, based on contemporary community standards.

If the decisions of Bell and Kelly mean that the test is whether a will-maker has valid (i.e., factually true) and rational (i.e., logically connected to the disinheritance) reasons for disinheriting a child, even where the reasons are not worthy of a judicious parent based on contemporary standards, they are difficult to reconcile with the fundamental principles of Tataryn and the search for contemporary justice in the circumstances.