THE ADVOCATE 359
VOL. 80 PART 3 MAY 2022
Court of Canada in the leading 1994 case of Tataryn v. Tataryn,11 a case
involving the now-repealed British Columbia Wills Variation Act. Justice
McLachlin, as she then was, traced the legislation back to its roots and, in
doing so, emphasized the social welfare character of the statute:
The statute, adopted in 1920, was modeled on New Zealand
legislation. When the bill was introduced, the Attorney General, J. W. de
B. Farris, described it as “one of the links in the Government’s chain of
social welfare legislation”. The bill “was the direct result of lobbying by
women’s organizations with the final power given to them through
women’s enfranchisement in 1916” (Leopold Amighetti, The Law of
Dependants’ Relief in British Columbia (1991), at p. 12). It is recorded in the
Journals of the Legislative Assembly of British Columbia that on proclamation
of the Act, the Lieutenant-Governor said that it “will tend towards
the amelioration of social conditions within the Province”.12
Estate practitioners in British Columbia are familiar with the fundamental
tension between the two interests protected by dependants’ relief legislation—
namely, the testamentary duty to provide for one’s spouse and
children, and the right of testamentary freedom. Despite its origin as social
welfare legislation, however, the current statutory framework in British
Columbia permits will-makers to deliberately avoid their moral and legal
obligations to make adequate provision for their surviving spouses and children
by arranging their affairs so that assets pass outside their estate, making
them unavailable to satisfy meritorious wills variation claims. As
discussed in British Columbia Estate Litigation:
While no doubt most readers of our text will be familiar with a characterization
of British Columbia’s judicial interpretations permitting the
variation of a will as somewhat “liberal,” in fact, an analysis of legislation
in other provinces will reveal that in certain respects it is more difficult
to succeed in a wills variation challenge in British Columbia depending
on how the estate assets have been structured and who is the aggrieved
party.13
To elaborate, while Tataryn clarified that will-makers have both legal and
moral obligations to provide support to spouses and children, WESA applies
only to those assets that devolve to the estate, leaving room for will-makers
to avoid its provisions. This is commonly accomplished by transferring
property into joint tenancy, granting inter vivos gifts or settling inter vivos
trusts.
The problems with this framework have been noted for many years. In
the foundational text, The Law of Dependants’ Relief in British Columbia,
Leopold Amighetti reviewed the emergence and judicial interpretation of
dependants’ relief legislation in British Columbia to the early 1990s.14
Amighetti repeatedly noted that because the statute applies only to assets