What factors will the court consider when deciding is a bequest is adequate?

The judge must decide whether the testator has acted as a judicious parent or spouse, considering current societal legal and moral norms.  The judge will consider:

  • What legal obligation the testator would have to the spouse or child during his life, if the question of providing for the claimant were to arise
  • What moral obligation the testator had – in other works, what society would expect a judicious person to do in the circumstances, with reference to contemporary community standards

If the estate is large enough, both legal and moral claims should be satisfied.  However, if this is not possible, the legal claims get satisfied before the moral claims.  For example, the legal duty to support a spouse will trump the moral duty owed to an independent child.  Similarly, the court must weigh the competing moral claims and rank them according to their strength.

Some of the factors the court will consider when deciding if the testator fulfilled his moral duty to his adult independent child are:

  • Did the child contribute to the accumulation of the testator’s assets with little in exchange
  • Did the first spouse (and parent of the child) who predeceased the testator contribute to the accumulation of the testator’s assets
  • Did the child provide care to the testator
  • Is the child disabled, or likely to become disabled in the future
  • Is the child in financial need, or likely to be in financial need in the future
  • Did the testator do something that created a legitimate expectation on the part of the child that he would receive a benefit on death
  • Did the testator make gifts to the child or others during his lifetime, or give assets on death that fell outside the will (life insurance, RRSP, RIF, pension benefits, etc)
  • Did the child’s conduct disentitle him to part of the estate
  • What were the testator’s reasons for cutting the child out of the will

In McBride v. Voth, the testator’s main asset was her house.  She divided her estate equally between her three children, but specified that her daughter Margot, who lived with her, would be entitled to stay in the house as long as she wanted.  Only after Margot moved could the house be sold and the other children get their share of the estate.  Margot said she wanted to stay in the house for life.  Based on average lifespan of 85 years this meant that the other children would not get their shares for another 27 years – assuming they lived that long.

The court said that the testator did not make adequate provision for her two other children.  Her method of distribution fell below the moral obligation of a contemporary judicious parent in the circumstances.

However, Margot did end up with 45% of the estate, as her moral claim was the strongest.  She had provided the testator with companionship all her life, and with care towards the end of it.  Another daughter was entitled to 30% due to her great financial need.  The son was entitled to 25%.

Each case is unique, but we can help determine whether a bequest was fair.  Contact us.

Read the case:  McBride v. Voth

 

 

Top