Wills Variation, Vancouver: Competing Moral Obligations

As I discussed in an earlier post, in wills variation proceedings, the courts are frequently tasked with balancing moral obligations of a will-maker to a second spouse against moral obligations to adult independent children from the will-maker’s first marriage.In Bridger v. Bridger Estate, 2006 BCCA 230, Mackenzie J.A. for the majority discussed the wills variation claims of adult children vis-à-vis the claim of a second spouse and affirmed that the moral obligation to a long-term, devoted spouse ought to outweigh obligations to independent adult children.

The marriage

Mr. and Mrs. Bridger married in 1965. It was a second marriage for both and there were no children born of their marriage. Mrs. Bridger had three sons by her first marriage, while Mr. Bridger had three daughters by his first marriage.

Financial affairs and assets

Apart from one joint account, Mr. and Mrs. Bridger kept their financial affairs entirely separate. Both led frugal lives. Prior to their marriage, Mrs. Bridger purchased a home and a rental property. During their marriage, Mrs. Bridger transferred the properties so that she and Mr. Bridger owned as tenants in common. Together they also purchased another revenue property.

The will

Mr. Bridger made his will in 1981, leaving a car to Mrs. Bridger and the rest of the estate to his daughters in equal shares. He told his lawyer that Mrs. Bridger had her own assets, including her own home and the revenue producing properties. Around the same time, Mrs. Bridger went to a different lawyer and made a will leaving her entire estate to her three sons.

The spouse’s illness and death

Mr. Bridger was diagnosed with early onset dementia in 1994 and gradually declined thereafter. Mrs. Bridger cared for him in the family home until January 1999, when he was moved to a care facility because she could no longer manage him. She continued to visit him regularly at the facility until his death. Mr. Bridger was 67 when he died in 2003. Mrs. Bridger was 76 and in good health.

Wills variation action: Trial and appeal

Unbeknownst to Mrs. Bridger, by the time of his death Mr. Bridger had accumulated financial assets of approximately $300,000. By the terms of his will, Mrs. Bridger would receive no portion of those assets. Mrs. Bridger commenced wills variation proceedings. The trial judge varied the will so that 25% of Mr. Bridger’s net estate went to Mrs. Bridger, and in addition that she be allowed to retain his share of the proceeds of sale of the two revenue properties in the approximate amount of $125,000. The remainder of the estate was divided between Mr. Bridger’s daughters. The daughters’ appeal from this decision was dismissed.

Wills variation: Legal obligations considered first

The starting point on a wills variation claim, per the leading case Tataryn v. Tataryn Estate [1994] 2 S.C.R. 807, is that consideration be given first to the will-maker’s legal responsibilities during his lifetime, viewed from the date immediately before his death. At that point, Mr. Bridger had no legal obligations to his daughters, who were independent adults.

With respect to the legal obligation to Mrs. Bridger, if the couple had separated while he was alive they would each have had a notional entitlement to a one-half interest in the family assets. A substantial portion of the family assets were the rental properties noted above, which were sold before his death. The sale proceeds were deposited into the Bridgers’ joint bank account, and thus passed to Mrs. Bridger by right of survivorship following his death. By virtue of the passage of the balance in that account, the court concluded that the will-maker had satisfied his legal obligation to his spouse outside his estate.

Wills variation: Moral obligations

Mr. Bridger’s will recognized the moral obligations to the will-maker’s daughters but ignored any moral obligation to Mrs. Bridger. The Court of Appeal agreed with the trial judge’s finding that the will-maker’s moral obligation was properly addressed by dividing the balance of the estate equally among the spouse and children. At para. 20, Mackenzie J.A. said (emphasis added):

Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults. While, as McLachlin J. observes in Tataryn, there may be a number of options for dividing assets by a testator which are adequate, just and equitable, I do not think they include a disposition that entirely prefers the moral claims of adult independent children to those of a loyal spouse who provided care for the testator over years of debilitating decline. I am satisfied that the trial judge was right to recognize unfulfilled legal and moral obligations of the testator to Mrs. Bridger, as those terms are understood in a wills variation context.

That reasoning was echoed by Low J. in Picketts v. Hall (Estate), 2009 BCCA 329 (which I discussed in this post), at para. 62:

It seems to me that it is also not a viable option for the court to approve a disposition that substantially prefers the moral claims of adult independent children to those of a long-term, caring and dedicated spouse.

Factors strengthening the moral obligation to the surviving spouse

The length of the marriage and Mrs. Bridger’s steadfast support of Mr. Bridger in his declining years primarily founded the moral obligation to Mrs. Bridger. The court noted that the Bridgers’ marriage was not particularly happy. They did, however, stick by one another for 38 years. The marriage continued for more than twenty years after Mr. Bridger’s will was made in 1981. The events over the intervening years supported a moral obligation to Mrs. Bridger unanticipated when the wills were made. There can be no question that Mrs. Bridger worked long and hard for Mr. Bridger as his health declined. The fact that they kept their financial affairs separate did not impact the strength of Mrs. Bridger’s moral claim.

In the result, the Court of Appeal upheld the trial judge’s order that Mrs. Bridger retain all of the proceeds from the sale of the properties and receive an additional 25% share of the financial assets remaining in the estate.

The bottom line on balancing moral obligations in wills variation proceedings

The moral obligation spouses owe to one another after a long-term marriage is considerable, and that obligation might be increased when, as in this case, one spouse falls ill and receives years of care, time, and effort from the other. On a wills variation application, there may be a number of options for dividing an estate which are adequate, just and equitable, but they do not include a disposition that entirely prefers the moral claims of adult independent children to those of a loyal spouse who provided care for the will-maker over years of debilitating decline.