Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807

Mary Tataryn Appellant

v.

Edward James Tataryn, Executor named in the Will of Alec Tataryn, a.k.a. Alex Tataryn and Alexander Tataryn, Deceased Respondent

Indexed as: Tataryn v. Tataryn Estate

File No.: 23398.

1994: May 3; 1994: July 14.

Present: La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Wills ‑‑ Variation ‑‑ Testator having statutory duty to make adequate provision for proper maintenance and support of surviving spouse and children ‑‑ Testator leaving wife only life estate in matrimonial home and benefit of discretionary trust ‑‑ Whether courts below failed to provide for wife appropriately in varying will ‑‑ Meaning of "adequate, just and equitable in the circumstances" ‑‑ Wills Variation Act, R.S.B.C. 1979, c. 435, s. 2(1).

The appellant and the testator were married for 43 years. Through their joint efforts they amassed an estate held in the testator's name at the time of his death consisting of the house in which they lived, a rental property next door inherited from the testator's father and money in the bank. They had two sons, J and E. The testator did not wish to leave anything to J, whom he disliked, and feared that if he left any of his estate to his wife in her own right, she would pass it on to him. He made a will leaving his wife a life estate in the matrimonial house and making her the beneficiary of a discretionary trust of the income from the residue of the estate, with E as trustee. After her death, everything was to go to E. The appellant and J claimed against the estate under the Wills Variation Act, s. 2(1) of which provides that if the testator fails to make adequate provision for the proper maintenance and support of a surviving spouse and children, the court may order the provision from the estate that it considers "adequate, just and equitable in the circumstances". The trial judge revoked the gift to E of the house next door and granted the appellant a life estate in it; directed that J and E each receive an immediate gift of $10,000 out of the residue of the estate; and directed that when the appellant died, the residue of the estate be divided one‑third to J and two‑thirds to E. The Court of Appeal dismissed the appeal, but clarified that certain expenditures should be made from the residue and that the trustee's discretion to encroach upon the residue to make payments to the appellant should be "exercised in a manner that will ensure that she shall have a reasonable standard of living commensurate with the standard of living she had prior to the death of her husband."

Held: The appeal should be allowed and the following order substituted for that of the trial judge: (1) to the appellant: (a) title to the matrimonial home; (b) a life interest in the rental property; and (c) the entire residue of the estate after payment of the immediate gifts to the sons; (2) to each son: an immediate gift of $10,000; (3) upon the appellant's death, the rental property to be divided one‑third to J and two‑thirds to E.

The generous language of the Act confers a broad discretion on the court and, combined with the rule in the Interpretation Act that a statute is always speaking, means that the Act must be read in light of modern values and expectations. The first consideration in determining what is "adequate, just and equitable" in the circumstances of the case must be the testator's legal responsibilities during his or her lifetime. Maintenance and provision for basic needs may or may not be sufficient to meet this legal obligation. Depending on the length of the relationship, the contribution of the claimant spouse and the desirability of independence, each spouse is entitled to a share of the estate. For further guidance in determining what is "adequate, just and equitable", the court should next turn to the testator's moral duties toward spouse and children. Where priorities among conflicting claims must be established, claims which would have been recognized during the testator's life should generally take precedence over moral claims. As between moral claims, some may be stronger than others. Any moral duty should be assessed in the light of the deceased's legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children. A will is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires.

In the present case the testator's only legal obligations during his life were toward his wife. Since the marriage was a long one and the appellant worked hard and contributed much to the assets she and her husband acquired, she would have been entitled to maintenance and a share in the family assets had the parties separated. The appellant's legal claims entitle her to at least half the estate and arguably to additional maintenance. Her moral claim to the funds set aside for old age is strong and indicates that an "adequate, just and equitable" provision for her requires giving her the bulk of the estate. The remaining moral claims are those of the two grown and independent sons, which cannot be put very high and are adequately met by the immediate gift awarded by the trial judge to each of them and a residuary interest in a portion of the property upon the appellant's death.

Cases Cited

Considered: Walker v. McDermott, [1931] S.C.R. 94; approved: Barker v. Westminster Trust Co. (1941), 57 B.C.R. 21; Re Michalson Estate, [1973] 1 W.W.R. 560; Granfield v. Williams (1981), 29 B.C.L.R. 150; Price v. Lypchuk Estate (1987), 11 B.C.L.R. (2d) 371; disapproved: Re Dawson Estate (1945), 61 B.C.R. 481; Re Hornett Estate (1962), 38 W.W.R. 385; Re Harding, [1973] 6 W.W.R. 229; referred to: Swain v. Dennison, [1967] S.C.R. 7; Re Livingston (1922), 31 B.C.R. 468; Re Hall (1923), 33 B.C.R. 241; Re Stigings (1924), 34 B.C.R. 347; Brighten v. Smith (1926), 37 B.C.R. 518; Bates v. Bates (1981), 9 E.T.R. 235 (B.C.S.C.), aff'd (1982), 11 E.T.R. 310 (B.C.C.A.); Barker v. Westminster Trust Co. (1941), 57 B.C.R. 21; Richards v. Person (1982), 34 B.C.L.R. 350 (S.C.), aff'd (1983), 49 B.C.L.R. 43 (C.A.); Pettkus v. Becker, [1980] 2 S.C.R. 834; Sorochan v. Sorochan, [1986] 2 S.C.R. 38; Peter v. Beblow, [1993] 1 S.C.R. 980; Moge v. Moge, [1992] 3 S.C.R. 813; Brauer v. Hilton (1979), 15 B.C.L.R. 116; Cowan v. Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.), aff'd (1990), 37 E.T.R. 308 (B.C.C.A.); Nulty v. Nulty Estate (1989), 41 B.C.L.R. (2d) 343; Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213.

Statutes and Regulations Cited

Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

Family Relations Act, R.S.B.C. 1979, c. 121.

Interpretation Act, R.S.B.C. 1979, c. 206, s. 7.

Wills Variation Act, R.S.B.C. 1979, c. 435, s. 2(1).

Authors Cited

Amighetti, Leopold. The Law of Dependants' Relief in British Columbia. Toronto: Thomson Professional Pub. Canada, 1991.

British Columbia. Law Reform Commission. Report on Statutory Succession Rights. Vancouver: Law Reform Commission of British Columbia, 1983.

APPEAL from a judgment of the British Columbia Court of Appeal (1992), 74 B.C.L.R. (2d) 211, 20 B.C.A.C. 218, 35 W.A.C. 218, 98 D.L.R. (4th) 717, 47 E.T.R. 221, affirming a decision of Paris J. granting the appellant's claim for relief under the Wills Variation Act. Appeal allowed.

Rhys Davies and Kerry D. Sheppard, for the appellant.

Robin J. Stewart, for the respondent.

The judgment of the Court was delivered by

McLachlin J. -- This case requires us to consider the principles to be applied to the British Columbia Wills Variation Act, R.S.B.C. 1979, c. 435.

Alex and Mary Tataryn were married for 43 years. He was a shoemaker; she worked as a waitress until 1975 and mainly in the home thereafter. Mr. and Mrs. Tataryn were industrious and frugal. Through their joint efforts, they amassed an estate valued at $315,264.69 which was held in Mr. Tataryn's name at the time of his death. This consisted of the house in which they lived, a rental property next door inherited from Mr. Tataryn's father, and $122,629.69 in the bank. Mrs. Tataryn also held $25,000 in her own name.

The Tataryns had two sons, John and Edward. From the time John was six years of age, his father disliked him. Over the years, Mr. Tataryn's dislike of his eldest son, which seems to have been partially related to certain religious convictions, grew in intensity and, ultimately, became obsessional. Nevertheless, Mrs. Tataryn "stuck up" for John and he continued to live in the home. Edward, on the other hand, lived across the continent in New Brunswick.

Mr. Tataryn did not wish to leave anything to John. He feared that if he left any of his estate to his wife in her own right, she would pass it on to him. He made a will leaving his wife a life estate in the matrimonial house. In addition, Mrs. Tataryn was made the beneficiary of a discretionary trust of the income from the residue of the estate, with the second son Edward as trustee. He was to apply the income in his discretion for her benefit, and was also given the power to encroach upon the capital of the estate. After her death, everything was to go to Edward. He left nothing to John. Alex Tataryn explained in Clause 4 of his will why he did this:

I HAVE PURPOSELY excluded my son, JOHN ALEXANDER TATARYN, from any share of my Estate and purposely provided for my wife by the trust as set out above for the following reason: My wife MARY and my older son JOHN have acted in various ways to disrupt my attempts to establish harmony in the family. Since JOHN was 12 years old he has been a difficult child for me to raise. He has turned against me and totally ignored me for the last 15 years of his life. He has been abusive to the point of profanity; he has been extremely inconsiderate and has made no effort to reconcile his differences with me. He has never been open to discussion with a view to establishing ourselves in unity. My son EDWARD is respectable and I commend him for his warm attitude towards me, his honesty, and his co-operation with me.

Mr. and Mrs. Tataryn had not discussed the possibility of death. They thought they were both in good health and there was no need to talk about such things. Mrs. Tataryn knew that there was money in the bank for their old age:

I knew he had money, but I never questioned him about it, and I thought, well, it is for our old age. I didn't care. I trusted my husband.

She stated:

. . . we had an agreement that we were going to keep the house going and he was going to save for our old age, so we always used to put his money in the bank.

It therefore came as a shock to Mrs. Tataryn to learn that her husband had left everything to Edward, subject to her right to live in the house and Edward's right to provide money for her use from time to time. She testified:

... I always loved my husband and respected him, and I would never do anything wrong to him, and I did exactly what he wanted me to do, and I just can't understand this.

Mrs. Tataryn and John claimed against the estate under the Wills Variation Act. The trial judge, after a four-day trial, gave oral reasons for judgment in which he revoked the gift to Edward of the house next door and granted Mary Tataryn a life estate in it; directed that John and Edward each receive an immediate gift of $10,000 out of the residue of the estate; and directed that when Mary Tataryn died, the residue of the estate be divided one-third to John and two-thirds to Edward.

The Court of Appeal dismissed the appeal, but clarified that certain expenditures should be made from the residue and that the trustee's discretion to encroach upon the residue to make payments to Mary Tataryn should be "exercised in a manner that will ensure that she shall have a reasonable standard of living commensurate with the standard of living she had prior to the death of her husband" ((1992), 74 B.C.L.R. (2d) 211, at p. 221).

Mary Tataryn now appeals to this Court.

The Statute

By s. 2(1) of the Wills Variation Act, a testator has a duty to make adequate provision for the proper maintenance and support of a surviving spouse and children. If the testator fails to discharge this duty, the court may order for the claimant the provision from the estate that it considers "adequate, just and equitable in the circumstances". The full language of the subsection is:

2. (1) Notwithstanding any law or statute to the contrary, if a testator dies leaving a will which does not, in the court's opinion, make adequate provision for the proper maintenance and support of the testator's wife, husband or children, the court may, in its discretion, in an action by or on behalf of the wife, husband or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the estate of the testator for the wife, husband or children.

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".

The Issue

The issue is whether the courts below erred in their interpretation of s. 2(1) of the Wills Variation Act. The law is unsettled as to precisely what considerations should govern a court faced with an application under this section. We are asked to clarify the principles applicable to the Act and determine whether, applying these principles to the facts in this case, the conclusion of the courts below can be sustained. For the purposes of this statute, an appellate tribunal is in the same position as the trial judge; deference to the findings of the trial judge is not required except on matters based on oral testimony: Swain v. Dennison, [1967] S.C.R. 7, at p. 12.

Discussion

The Language of the Act

The language of the Wills Variation Act is very broad. The court must determine whether the testator has made "adequate provision" for his spouse and children. If it concludes he or she has not, the court "may, in its discretion, ... order ... the provision that it thinks adequate, just and equitable in the circumstances".

I do not interpret the section as imposing two different tests. The court must ask itself whether the will makes adequate provision and if not, order what is adequate, just and equitable. These are two sides of the same coin.

The words "adequate, just and equitable" may be interpreted in different ways. At one end of the spectrum, they may be confined to what is "necessary" to keep the dependants off the welfare roles. At the other extreme, they may be interpreted as requiring the court to make an award consistent with the lifestyle and aspirations of the dependants. Again, they may be interpreted as confined to maintenance or they may be interpreted as capable of extending to fair property division. Complicating these questions are the issues of the weight to be placed on the "right" of the testator to dispose of his estate as he chooses -- i.e., testamentary autonomy -- and the equities as between the beneficiaries: spouses and children. Different courts, applying a variety of approaches to these questions, have, over time, arrived at different interpretations of the meaning of "adequate, just and equitable".

Whatever the answers to the specific questions, this much seems clear. The language of the Act confers a broad discretion on the court. The generosity of the language suggests that the legislature was attempting to craft a formula which would permit the courts to make orders which are just in the specific circumstances and in light of contemporary standards. This, combined with the rule that a statute is always speaking (Interpretation Act, R.S.B.C. 1979, c. 206, s. 7), means that the Act must be read in light of modern values and expectations. What was thought to be adequate, just and equitable in the 1920s may be quite different from what is considered adequate, just and equitable in the 1990s. This narrows the inquiry. Courts are not necessarily bound by the views and awards made in earlier times. The search is for contemporary justice.

The Interests Protected

The two interests protected by the Act are apparent. The main aim of the Act is adequate, just and equitable provision for the spouses and children of testators. The desire of the legislators who conceived and passed it was to "ameliorat[e] ... social conditions within the Province". At a minimum this meant preventing those left behind from becoming a charge on the state. But the debates may also be seen as foreshadowing more modern concepts of equality. The Act was passed at a time when men held most property. It was passed, we are told, as "the direct result of lobbying by women's organizations with the final power given to them through women's enfranchisement in 1916". There is no reason to suppose that the concerns of the women's groups who fought for this reform were confined to keeping people off the state dole. It is equally reasonable to suppose that they were concerned that women and children receive an "adequate, just and equitable" share of the family wealth on the death of the person who held it, even in the absence of demonstrated need.

The other interest protected by the Act is testamentary autonomy. The Act did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was "adequate, just and equitable in the circumstances." And if that testamentary autonomy must yield to what is "adequate, just and equitable", then the ultimate question is, what is "adequate, just and equitable" in the circumstances judged by contemporary standards. Once that is established, it cannot be cut down on the ground that the testator did not want to provide what is "adequate, just and equitable".

The Jurisprudence -- Need or Something More?

The early cases equated what was "adequate, just and equitable in the circumstances" with what was required to support or "maintain" the spouse and children of the testator: Re Livingston (1922), 31 B.C.R. 468; Re Hall (1923), 33 B.C.R. 241; Re Stigings (1924), 34 B.C.R. 347; Brighten v. Smith (1926), 37 B.C.R. 518. As McPhillips J.A. put it in Brighten v. Smith (at p. 523):

If ... the husband or the wife should be in need, ... the relationship that exists calls upon the husband or the wife to remember it and make provision, otherwise we should have the husband or the wife, ... becoming a public charge upon the country.

This approach is consistent with the view of duties between husband and wife prevailing in the 1920s. For example, on marriage breakup the husband was generally required to support or "maintain" the wife and no more. She had no claim on his property. It is hardly surprising that the judges of the time interpreted the Act in terms of need or what was required to maintain the spouse.

This Court rejected the need-maintenance approach to the Act in Walker v. McDermott, [1931] S.C.R. 94. At issue was the right of an independent child to share in an estate which the testator had left entirely to his wife. This Court upheld the trial judge's decision to award the child $6,000 of the $25,000 estate, overruling the Court of Appeal's decision that all should go to the wife. Duff J. (as he then was), speaking for the majority, enunciated the following test (at p. 96):

What constitutes "proper maintenance and support" is a question to be determined with reference to a variety of circumstances. It cannot be limited to the bare necessities of existence. For the purpose of arriving at a conclusion, the court on whom devolves the responsibility of giving effect to the statute, would naturally proceed from the point of view of the judicious father of a family seeking to discharge both his marital and his parental duty; and would of course (looking at the matter from that point of view), consider the situation of the child, wife or husband, and the standard of living to which, having regard to this and the other circumstances, reference ought to be had.

Walker v. McDermott may be seen as recognizing that the Act's ambit extended beyond need and maintenance. As Amighetti, supra, puts it (at p. 36), "the award in Walker v. McDermott can be supported only on the basis that the court interpreted the Act as a vehicle for redistribution of the capital of the estate".

It may be noted that the need-maintenance rationale would not have permitted the court to recognize the claim of an independent adult child, as was done in Walker v. McDermott. The obvious question arose; if the British Columbia legislature had wished to confine the power of the court to order testamentary changes to need and maintenance, why had it not excluded adult independent children as was done, for example, in Alberta? This would have left the courts with three choices: (1) replace the need-maintenance test with a more generous test; (2) create two tests -- need-maintenance for spouses and dependent children and something more generous for adult independent children; or (3) read the British Columbia Act as confined to spouses and dependent children. The fact that the Act lumped spouses and children together militated against the two-test approach, and the absence of words limiting claims to dependent children undercut the alternative of confining the Act to spouses and dependent children. Thus it is not surprising that the Court in Walker v. McDermott adopted a broader test, sometimes called the "moral duty" approach.

The decisions of lower courts after Walker v. McDermott follow two lines. The majority, in keeping with the philosophy of Walker, affirmed the principle that spouses and children were entitled to an equitable share of the estate even in the absence of need. "Moral duty" became the watchword: Barker v. Westminster Trust Co. (1941), 57 B.C.R. 21 (C.A.); Re Michalson Estate, [1973] 1 W.W.R. 560 (B.C.S.C.); Granfield v. Williams (1981), 29 B.C.L.R. 150 (C.A.). This line of authority culminated in Price v. Lypchuk Estate (1987), 11 B.C.L.R. (2d) 371. Lambert J.A., speaking for the majority, stated (at p. 380):

There is a further question about whether all the issues raised by s. 2(1) of the Act can be determined by economic considerations alone, or whether moral considerations must also be weighed. The answer to that question is now settled. Moral considerations are relevant.

In my opinion, the very structure of the Act makes it clear that the legislative scheme contemplates that the concept of moral duty is an essential element in the working of the Act. [Emphasis added.]

A second, weaker line of authorities followed the old view that the testator's wishes could be disturbed only on the basis of need: Re Dawson Estate (1945), 61 B.C.R. 481 (S.C.); Re Hornett Estate (1962), 38 W.W.R. 385 (B.C.S.C.); Re Harding, [1973] 6 W.W.R. 229 (B.C.S.C.). These authorities found a defender in Amighetti, supra. In his view, the purpose of the Act was the modest one of preventing spouses and children from becoming charges on the state. It is essentially a welfare document. Subject to the obligation to care for the needs of his spouse and children, the testator's right to dispose of his property as he sees fit remains absolute. In Amighetti's view, this interpretation is mandated by the plain words and history of the Act. The early cases got it right when they confined the revisionary powers of the court to cases of need. Walker v. McDermott, on the other hand, erred in "attribut[ing] to the Act a meaning and function clearly beyond that defined by the early British Columbia cases and the capabilities of the Act" (pp. 36-37).

It has been suggested that this Court ought to replace the "judicious father and husband" test it set out in Walker v. McDermott and return to the needs-based analysis which prevailed in the early years of the Act. With great respect to the arguments to the contrary, I am not persuaded that we should do so.

First, I cannot agree that the wording of the Act suggests a strict needs-based test. As noted above, the wording is broad and capable of embracing changing conceptions of what is "adequate, just and equitable". The Act does not mention need. Moreover, if need were the touchstone, the failure to exclude independent adult children from its ambit presents difficulty. Nor, as will be discussed in greater detail below, do the words of the statute suggest a test devoid of judicial discretion, as witnessed by the express references to "discretion" and what is "adequate, just and equitable in the circumstances" (emphasis added).

Nor can I agree that the history of the Act suggests that the only reason for its passage was to prevent persons becoming a charge on the state. While the Act certainly was intended to serve this minimum function, there is nothing to suggest that the women's groups who lobbied for it or the legislators who adopted it intended that it be confined to cases of need.

The remaining argument is that Walker v. McDermott extends the Act beyond its capabilities. Again with respect, I cannot agree. This argument is founded on the proposition that the Walker test introduces too much uncertainty into the law. Amighetti states (at p. 56):

The final result, in any given case, is completely at the discretion of the presiding judge as he or she alone considers the facts and makes a judgement, doubtless influenced by his or her own perception of what is fair and right. We are thus regressing to the unacceptable "time when Equity was interpreted by the length of the 'Chancellor's foot'..."

This criticism is value-neutral. It does not support the adoption of a needs-maintenance approach. It merely suggests that there must be some yardstick, be it need or some other, by which courts might measure the terms "adequate, just and equitable". From time to time courts following Walker v. McDermott have attempted to suggest ways of rendering the task under the Act more predictable. In Bates v. Bates (1981), 9 E.T.R. 235 (B.C.S.C.), Lander L.J.S.C. (as he then was) used actuarial evidence to determine what was adequate, just and equitable. In Barker v. Westminster Trust Co. (1941), 57 B.C.R. 21, O'Halloran J.A. found assistance in the standards for distribution of assets where there is no will, a test rejected by the Court of Appeal in Bates v. Bates (1982), 11 E.T.R. 310. In Richards v. Person (1982), 34 B.C.L.R. 350 (S.C.), Taylor J. used the provisions of the Family Relations Act, R.S.B.C. 1979, c. 121, for distribution of assets on marital separation as a guide, only to be told by the Court of Appeal that this was an improper consideration: (1983), 49 B.C.L.R. 43.

If the phrase "adequate, just and equitable" is viewed in light of current societal norms, much of the uncertainty disappears. Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is "adequate, just and equitable" in the circumstances of the case.

The first consideration must be the testator's legal responsibilities during his or her lifetime. The desirability of symmetry between the rights which may be asserted against the testator before death and those which may be asserted against the estate after his death has been noted by the dissenting member of the British Columbia Law Reform Commission in its 1983 report on the Act, Report on Statutory Succession Rights (Report No. 70). Mr. Close argues (at p. 154):

A person is under a legal duty to support his or her spouse and minor children. If this duty is not observed then it may be enforced through the courts. That a testator's estate should, therefore, be charged with a duty similar to that borne by the testator in his lifetime is not troublesome.

It follows that maintenance and property allocations which the law would support during the testator's lifetime should be reflected in the court's interpretation of what is "adequate, just and equitable in the circumstances" after the testator's death.

The legal obligations on a testator during his or her lifetime reflect a clear and unequivocal social expectation, expressed through society's elected representatives and the judicial doctrine of its courts. Where provision for a spouse is in issue, the testator's legal obligations while alive may be found in the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp), family property legislation and the law of constructive trust: Pettkus v. Becker, [1980] 2 S.C.R. 834; Sorochan v. Sorochan, [1986] 2 S.C.R. 38; Peter v. Beblow, [1993] 1 S.C.R. 980. Maintenance and provision for basic needs may be sufficient to meet this legal obligation. On the other hand, they may not. Statute and case law accepts that, depending on the length of the relationship, the contribution of the claimant spouse and the desirability of independence, each spouse is entitled to a share of the estate. Spouses are regarded as partners. As L'Heureux-Dubé J. wrote in Moge v. Moge, [1992] 3 S.C.R. 813, at p. 849:

... marriage is, among other things, an economic unit which generates financial benefits .... The [Divorce] Act reflects the fact that in today's marital relationships, partners should expect and are entitled to share those financial benefits.

The legal obligation of a testator may also extend to dependent children. And in some cases, the principles of unjust enrichment may indicate a legal duty toward a grown, independent child by reason of the child's contribution to the estate. The legal obligations which society imposes on a testator during his lifetime are an important indication of the content of the legal obligation to provide "adequate, just and equitable" maintenance and support which is enforced after death.

For further guidance in determining what is "adequate, just and equitable", the court should next turn to the testator's moral duties toward spouse and children. It is to the determination of these moral duties that the concerns about uncertainty are usually addressed. There being no clear legal standard by which to judge moral duties, these obligations are admittedly more susceptible of being viewed differently by different people. Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought. For example, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits. Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator's other obligations may allow. While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made: Brauer v. Hilton (1979), 15 B.C.L.R. 116 (C.A.); Cowan v. Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.), aff'd (1990), 37 E.T.R. 308 (B.C.C.A.); Nulty v. Nulty Estate (1989), 41 B.C.L.R. (2d) 343 (C.A.). See also Price v. Lypchuk Estate, supra, and Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (C.A.) for cases where the moral duty was seen to be negated.

How are conflicting claims to be balanced against each other? Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator's life -- i.e., claims based upon not only moral obligation but legal obligations -- should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority. In doing this, one should take into account the important changes consequent upon the death of the testator. There is no longer any need to provide for the deceased and reasonable expectations following upon death may not be the same as in the event of a separation during lifetime. A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes. Any moral duty should be assessed in the light of the deceased's legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children.

I add this. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires.

Application of the Test to This Case

I turn first to the legal responsibilities which lay on the testator during his life. His only legal obligations were toward Mrs. Tataryn. While they had not crystallized, since the parties were living together at the time of death, they nevertheless existed. The testator's first obligation was to provide maintenance for Mrs. Tataryn. But his legal obligation did not stop there. The marriage was a long one. Mrs. Tataryn had worked hard and contributed much to the assets she and her husband acquired. There are no factors, such as incompetence, negating her entitlement. Under the Divorce Act and the Family Relations Act she would have been entitled to maintenance and a share in the family assets had the parties separated. At a minimum, she must be given this much upon the death of her spouse.

I turn next to the moral claims on the testator. The highest moral claim arises from the fact that Mrs. Tataryn has outlived her husband and must be provided for in the "extra years" which fate has accorded her. This is not a legal claim in the sense of a claim which the law would have enforced during the testator's lifetime. It is, however, a moral claim of a high order on the facts of this case. Mr. and Mrs. Tataryn regarded their estate as being there to provide for their old age. It cannot be just and equitable to deprive Mrs. Tataryn of that benefit simply because her husband died first. To confine her to such sums as her son may see fit to give her, as the testator proposed, fails to recognize her deserved and desirable independence and constitutes inadequate recognition of her moral claim.

The remaining moral claims on the testator are those of the two grown and independent sons. The testator gave nothing to one, everything to the other, subject to his provision of money to Mrs. Tataryn. The moral claims of the sons cannot be put very high. There is no evidence that either contributed much to the estate.

The "legal claims" of Mrs. Tataryn entitle her to at least half the estate and arguably to additional maintenance. Additionally, her "moral claim" to the funds set aside for old age is strong. These claims indicate that an "adequate, just and equitable" provision for her requires giving her the bulk of the estate. The moral claim of the sons is adequately met by the immediate gift of $10,000 awarded by the trial judge to each of them and a residuary interest in a portion of the property upon the death of Mrs. Tataryn. It may be noted that neither son contested the trial judge's order giving John a portion of the estate.

Disposition

I would allow the appeal and substitute the following order for that of the trial judge:

1. To Mrs. Tataryn:

(a) Title to the matrimonial home;

(b) A life interest in the rental property;

(c) The entire residue of the estate after payment of the immediate gifts to the sons.

2. To each son: an immediate gift of $10,000;

3. Upon the death of Mrs. Tataryn: the rental property to be divided between John and Edward in the shares suggested by the trial judge for division of the residue, being one-third to John and two-thirds to Edward.

4. Costs from the estate.

Appeal allowed.

Solicitors for the appellant: Davis & Company, Vancouver.

Solicitors for the respondent: McLachlan Brown Anderson, Vancouver.