What is the testator’s obligation to divide the estate of a child who is a self-sufficient adult child?

British Columbia, Canada


The following excerpt is from Atwal v. Atwal, 2010 BCSC 1261 (CanLII):

I refer to the helpful analysis and summary of Tataryn found in McBride v. Voth 2010 BCSC 443 at para. 27: McLachlin J. indicated that a testator’s moral duties are found in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (p. 821). She acknowledged that because there is no clear legal standard to assess moral duties, obligations falling under that rubric are more susceptible to being differently interpreted by different individuals (p. 822). The position under the Act of a testator’s self-sufficient adult child has been controversial since the inception of the statue. In directing her mind to the moral claims of such children, McLachlin J. noted that while they may be more tenuous than that of a spouse or dependent child, the jurisprudence suggests that where the size of the estate permits, some provision for such children should be made, unless there are circumstances that would negate such an obligation (p. 822). Tataryn recognized that there is no single way for a testator to divide the estate in order to discharge the legal and moral duties. In this regard, McLachlin J. reminded that it is only where the testator has chosen an option which falls below his or her obligation defined by reference to the contemporary sense of legal and moral norms, that a court will made an order “which achieves the justice the testator failed to achieve” (p. 824).

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