Beyond a consideration of the competing legal claims are the moral claims which the courts must consider in deciding a Wills Variation Act claim. These moral claims are usually more individual and specific than legal claims and can include the most varied considerations, some of which be assured/implied expectations, disability and financial circumstances. It will continue to be interesting how the courts judge these cases by “contemporary standards” in light of “modern values and expectations.”
Everything from cultural factors to family dynamics can be a consideration for the court in evaluating moral claims. In a case we handled several years ago, McBride v. Voth, one of three children remained at home with her mother. In recognition of this care, the mother divided the estate three ways but allowed the daughter to remain in the home as long as she wanted. One moral consideration argued in court was that this daughter’s assistance allowed her mother to remain in her home past the age when she otherwise may have been able to, allowing her to “age in place” and not in a retirement home.
It remains the court’s job in Wills Variation Act claims to determine the strength of these legal and moral claims of the spouse and children, assign to each its proper priority, and decide if the testator made provision which falls within the appropriate range. If he/she did not, the court must change the will to achieve the justice the testator did not.
If you have been disinherited or did not receive a fair share of your husband’s, wife’s or parent’s estate, click here to give us the particulars or call us at 604.264.5550 to schedule a free consultation to learn how the Wills Variation Act applies to your situation.