There have been a lot of comments over the case of Robert McCorkell, a Canadian whose will left a coin collection to a neo-Nazi group in the United States. It was met with a legal challenge in Canada.
While most agree that it would be an unfortunate outcome, many were surprised and outraged that a court could possibly infringe on what people do in their wills.
However, legislation places many obligations on testators when making a will.
So for those of us who are not giving to neo-Nazi groups in our wills, what other obligations does a testator have when drafting a will?
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Many clients who come to my office are surprised to learn about these legal obligations. British Columbia, Alberta, Saskatchewan and Manitoba all have some sort of law governing a testator’s obligations: the Wills Variation Act in B.C., the Wills Act in Alberta and the Dependants’ Relief Act in Saskatchewan and Manitoba.
All of the provinces except Manitoba have since adopted the test from the Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate.
In those three provinces, testators are required to leave an amount that is “adequate, just and equitable” to their dependants, defined as their spouses, minor children and adult children who are dependent on them because of a disability. This applies to all adult children in British Columbia.
If this doesn’t happen, the people who are entitled to an adequate, just and equitable share in the estate can apply to the court to alter the will to include them.
In Manitoba, dependants are spouses, children younger than 18, children older than 18 who are dependent on the testator because of illness or disability, parents or grandparents who are dependent on the testator, grandchildren who are dependent on the testator and former spouses who were receiving maintenance at the time of the testator’s death.
The court may make a “reasonable” provision for them based on the size of the estate, their age, their level of need and other factors.
Courts have determined that what is “adequate, just and equitable” or “reasonable” varies from case to case.
There is also no specific amount or gift that is “adequate, just and equitable” or “reasonable” for any one case.
Many options might be suitable. Courts will be hesitant to vary a will as long as testators provide for their dependents in a way that can be seen as “adequate, just and equitable.”
Most people provide for their dependents, but many do not realize that a spouse, including a common-law spouse, qualifies as a dependent.
A woman in Saskatchewan who has been living with her partner for more than two years may not realize that she qualifies as a dependant and ought to be provided for.
If her partner does not provide for her in the will, she has the legal right to apply to the court to vary the will to do so.
