What is the test for a variation of a Will?

In order to succeed in an action of this kind, a claimant must first persuade the court that the testator failed to “make adequate provision for the proper maintenance and support of the [claimant]”. If that fact is established, then the court may vary the Will so as to make what the court thinks to be an “adequate, just and equitable” provision for the claimant. (See Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807; 93 B.C.L.R. (2d) 145.

In order to establish that a testator failed to make provision for the claimant that was “adequate, just and equitable”, the claimant must prove that the testator failed to meet his legal obligations or his moral obligations owed to the claimant. A testator’s legal obligations are: “… the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise.” A testator’s moral obligations to his spouse or child are legally defined as: “... society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.” See Tataryn v. Tataryn Estate at paras. 28 and 30.

Although a claimant does not have to prove that he or she is in financial need, the moral claim of an independent adult child is not as strong as that of a surviving dependent spouse, or a dependent adult child. But even so: “If the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made….” See Tataryn v. Tataryn Estate at paras. 19, 24 and 31.

In assessing a claim made under s. 2 of the Act, the court must give due weight to the principle of testamentary autonomy, which must prevail unless the provision for the claimant is shown not to be “adequate, just and equitable in the circumstances”. See Tataryn v. Tataryn Estate at paras. 17 and 33.