Mixed Families FAQ

  • Can I challenge the will if my parent's estate is left to my young step-mother?

    Mom and dad were married for 45 years. Mom died and dad married a woman half his age. If his will leaves all my parent's assets to my young step-mother, can I challenge the will?

    • Yes, adult children in BC can apply to the Supreme Court to vary a will made by a parent which does not adequately provide for them.
    • Any property that was held in joint tenancy by spouses at the time of death goes automatically to the surviving spouse and does not form part of the estate.

    Competing estate claims between step-parents and surviving children have become quite common in recent years. If there is a pre-nuptial agreement, then it will likely govern how the estate property is to be divided. Otherwise, it will be a contest between the young step-mother and the children.
    The trend is to favour surviving spouses as there is a legal duty to support a spouse. However, where the size of the estate permits it, adult independent children may receive a portion of the estate.
    In Saugestad v. Saugestad the judge weighed the legal and moral obligations the testator owed to his wife against the moral obligation owed by the testator to his sons from his first marriage.
    In assessing the moral claims of the wife, the judge said that cases involving second marriages present unique difficulties in assessing the moral obligations of the testator. The case involved a second marriage of moderate length (11 years); the testator had children from a previous marriage and much of his estate was accumulated during that first marriage; each party had their own assets and was largely financially independent; and the testator made clear his intention that he wanted his estate to benefit his children, and not his second wife's heirs. The judge said that society's reasonable expectations of what a judicious husband and father would do in such circumstances may vary much more widely than they might in the case of a life-long marriage in which neither party entered the relationship with significant assets.
    In assessing the moral claims of the sons, the testator supported his sons during his lifetime by paying for their educational expenses and providing them with a relatively comfortable upbringing which included a large home in Japan, travel, and the use of properties in Boca Raton and Whistler. The sons also had a legitimate expectation that they would receive the bulk of the Deceased's estate. Thus, they had a strong competing moral claim. As such, in varying the Will, the moral claims of the wife had to be balanced against the moral claims of the sons.
    In that case the wife had come into the marriage with $200,000 in assets. She gave up her career as a realtor and enjoyed an affluent lifestyle, paid for by the deceased. The judge varied the will to give her a small amount more than the deceased had, so she ended up with $900,000, or a little under half of the estate.

  • The will divided the house between the children and step-mother, who still lives in the house: what can be done?

    • The court can be asked to order the sale of the property, so each person can get their inheritance now.

    We represented the daughters of the testator. The will directed that five years after his death, his share of the matrimonial home be divided between his second wife and his three daughters from his first marriage. The effect of this was that the widow ended up with a 58% interest and the daughters with a 42% interest. Six years after his death, the widow still lived in the home and the daughters sought to have the home sold so they could have their inheritance. The widow opposed the sale for various reasons, including that the will contained no power to sell and that she would be unable to buy another home with her share of the proceeds.
    The court ordered that the home be sold. The only reasonable interpretation of the will was that the testator intended to give the widow 5 years in which to transition her life, then the home would be sold. Any other interpretation would mean that he intended to give his daughters an unmarketable and worthless asset, and would render the five year delay before distribution meaningless. As such, there was an implied power of sale in the will. Furthermore, the sale was beneficial for all and was necessary. To deny a sale would be to frustrate the testator's intention to provide for his children. The widow could not afford to live in and maintain the house by herself. The widow's proceeds might not allow her to buy another home, but should be sufficient to support her.

  • The will makes a gift to the grandchildren: who shares in the gift?

    • The court must interpret the will to determine who the testator was referring to.
    • In order to answer this question, the court will try to put itself into the "armchair of the testator" and read the will in the context of the things known to the testator.

    In one of our cases, Re Mackay Estate, the will provided for distribution of the estate upon the death or remarriage of the testator's widow and specifically named the deceased's two daughters and the grandchildren as beneficiaries.
    The judge decided that the class of grandchildren was to be determined upon the death or remarriage of the widow. As a general rule, in the case of a gift to a class, the class was to be ascertained at the testator's death. Although, on the facts, it was unlikely that other grandchildren would be born, the possibility of adoption existed, and there was little practical difficulty in setting aside appropriate funds from the estate residue. Here, it was clearly the intention of the testator that the class not be closed until the death or remarriage of his wife.
    In another one of our cases the will gave a gift to the grandchildren. There were 3 that were blood relatives, and 27 more that were step-grandchildren. The court had to determine whether the step-grandchildren were included or not.
    The judge decided that they were not included. The starting point is that there is a legal presumption that words like "children" and "grandchildren" refer to blood relatives only. In some cases the words of the will show that this is not what the testator meant, and in those cases the words of the will govern. In other cases the testator's intention is not clear from the words used in the will. In those cases, the judge tries to put him or herself in the "armchair" of the testator, and considers the facts and circumstances known to the testator when the will was made.
    In this case, the judge considered notes in the file of the lawyer who drafted the will. These notes showed that the testator only meant her blood relatives to get the gift. These notes were in harmony with the words used in the will itself, and were consistent with the legal presumption.

  • Who gets priority in a Wills Variation action - minor children or the second wife?

    This question has not been settled - the answer may depend on the financial resources each has

    • The testator owes a legal duty to both the current wife and the minor children
    • If the estate is large enough, both groups should be provided for
    • There is surprisingly little case law on this question, given how many second marriages there are.

    In Morphy v. Mohr the testator had a 14 year old daughter. He had remarried. His wife was 48 when he died, in poor health and unable to work. The will left his daughter $2,500. He felt his wife was a poor money manager, so he left the rest of his $320,000 estate to his wife as a life estate. The trustees had the power to spend both interest and capital to support the wife.
    The testator almost cut his daughter out of the will because he blamed her for alienating herself from him, and he thought she was well provided for by her mother. The trial judge decided that he was wrong on both counts, so his reasons were not legally valid. He had failed to make adequate provision for the proper maintenance and support of his dependent child.
    However, the judge then analyzed the case on the basis that there was a contest between the moral duty owed to the daughter and the legal duty owed to the wife. Given the size of the estate, he felt that a large gift to the daughter would imperil the wife's survival. He increased the daughter's gift to $25,000 which he felt would provide adequate maintenance and support to her during the remaining years of her minority.
    While this may have been the right outcome on the facts of this case, we believe the judge erred in his analysis. The testator owed a legal duty to both his minor daughter and his wife.