In Scurek v. Scurek, 2021 BCCA 178, the Court of Appeal for British Columbia reviewed a case in which the trial judge varied the testator's will to give a larger share to the testator's daughter.
Mr. Scurek died in 2017 at age 85. He was pre-deceased by his wife, with whom he had two children: Peter and Lydia. Lydia has two children, James and John ("the grandchildren"). Mr. Scurek's will left half of his sizable estate to Peter and split the other half equally between Lydia, James, and John (i.e. 1/6 each).
While Peter has a comfortable income, Lydia has no assets and her only income comes from a disability pension. After her father died, Lydia brought an application to vary his will.
Will variation has been a notable feature of wills & estates law in BC since the 1920s and traces its roots to a similar statute from New Zealand. These provisions are the subject of a lot of commentary.
Section 60 of British Columbia's Wills, Estates and Succession Act, SBC 2009, c 13 ("WESA") allows courts to change a will that doesn't adequately provide for the testator's spouse or children, to make it "just and equitable". Someone negatively impacted by a will variation can appeal the order under s. 72 of the act.
Courts have a lot of discretion when varying a will (Tataryn v. Tataryn,  2 SCR 807). The analysis is a two-step process. First, the court must determine if the will's provisions were adequate. Then, if not, the court must decide what would be adequate.
The adequacy of a will's provisions is based on the testator's legal and moral obligations to their spouse and children. Adequacy is assessed as of the date of the testator's death, not the date of the will.
The trial judge found that Mr. Scurek's will did not adequately provide for Lydia.
There was evidence that Lydia's relationship with her mother had not been great, and that this may have impacted her share of the estate. Lydia's mother had concerns that Lydia was unwise with money and struggled with alcoholism, and thought it better for Mr. Scurek to divide Lydia's half of the estate between her and the grandchildren.
Mr. Scurek did not owe a moral duty to the grandchildren, however, whereas Lydia was in need. The trial judge found that at the time of Mr. Scurek's death, Lydia was hard working, not of poor character, and had a better handle on her substance abuse issues.
The trial judge reapportioned the estate, giving half to Lydia, reducing Peter's share by one third, and cutting the grandchildren's gifts in half.
Peter appealed the trial judge's variation of the will, asserting that the variation was not just and equitable and Mr. Scurek deliberately gave some of Lydia's half to the grandchildren because of her issues with money and substance abuse.
Writing for a unanimous panel, Saunders J. noted that the relevant time to assess the adequacy of the will's provisions is the date of Mr. Scruek's death, not the date of the will. The trial judge found that at this time, Lydia had a good relationship with her father and had improved her personal situation.
Given these facts, the will did not adequately provide for Lydia. Mr. Scurek owed no moral duty to the grandchildren, and so the share of his estate allocated to them does not count towards what is fair for Lydia.
While a variation was appropriate, the trial judge erred in reducing Peter's share below Lydia. This was too substantial of a departure from Mr. Scurek's wishes.
The Court of Appeal ordered a new apportion of the estate, allocating one-twelfth to each of James and John and splitting the rest between Peter and Lydia.