Court of Appeal Changes Will After Death of Will Writer

The recent BC Court of Appeal case of Tom v. Tang (2023) demonstrated again that BC Courts are willing to change the contents of a will under the Wills, Estates and Succession Act (WESA). In this blog, we’ll cover the Court’s decision and the steps will writers can take to avoid estate litigation.

Facts of the Case

In the recent case of Tom v. Tang, three siblings claim that their mother’s will is unfair. The will left equal shares of the estate to the five children. However, the sale proceeds of her house were only left to two. The result was that 85% of the estate’s value was left to only two of the five children. Ms. Tang gave the proceeds of the home to the two children in recognition for their contribution to her care in the final years of her life. 

The three siblings who received lower inheritances claimed the will was unfair and should be varied by the Courts. The siblings who received larger inheritances argued that the Court must enforce the wishes of the will writer, Ms. Tang. 

The Court’s Decision

The Court considered the testamentary wishes of the will writer and the rationality of the contested provision. Ultimately, the Court found that the division was unfair or irrational under WESA. Considering each child’s contributions to the family during their adult life, a more equal division would be reasonable. The Court rewarded the two siblings 30% each of the estate’s total value, and about 14% to each of the remaining three children. This balanced the fair division of assets to each child while acknowledging the will writer’s intention of rewarding the two siblings for their extra efforts.  

Varying a Will Under WESA

In British Columbia, WESA regulates estate distribution and planning.  Under WESA, Courts can change the provisions of a will to benefit family members that were excluded or treated unfairly. Section 60 of the Act allows interested parties, such as children or spouses, to challenge an unfair will. However, not just anyone who feels they should have been included can contest a will. For more on eligibility for challenging a will, check out our previous video blog by Darren Williams.

The Act requires will writers, or testators, to provide adequate maintenance for interested parties. There are a limited number of reasons that a testator can validly exclude, for example, a child from their will. If a dependant hasn’t been provided adequate provision in a will, they may be able to raise a claim. 

Steps to Avoid Potential Estate Litigation

There are steps that testators can take to ensure their will is WESA compliant and potentially avoid litigation. First, testators should ensure that they carefully consult with an estate lawyer when planning and writing their will. The benefit of drafting with a lawyer over doing it yourself or with a notary is that a lawyer can foresee potential legal issues which may cause litigation later on. Being able to identify common pitfalls and predict problems in your estate plan can save time, money and stress.

Second, testators should ensure that they are very clear with their intentions when giving large gifts during their lifetime. This can include cash gifts, real estate or valuables which many family members may have a special interest in inheriting. By ensuring that they record all gifts in writing and expressly state that the transfer was a gift, testators can avoid ambiguity. Working with a lawyer to record your intentions for large transfers can help to avoid undue influence or testamentary incapacity claims. If the intention to gift is unclear on large gifts, potential beneficiaries may claim the transfer was not a gift on the basis of resulting trust or the testator’s legal capacity to make the transfer. 

If you’re looking for specific advice on how to reduce risk of litigation arising from your will, contact an experienced estate lawyer today. We’ll help create an estate plan for you unique situation and needs.