July 31st, 2019 by FH&P Lawyers

Contemporary community standards dictate that wills be carried out in an adequate, just, and equitable manner in light of current societal norms. Often, what that translates to is the legal and moral obligations that a will-maker has to certain beneficiaries and certain relationships they may have. For example, if one was to cut a family member out of one’s will based on their sexual orientation, the family member can apply for a wills variation to assess whether this action is adequate, just, or equitable. This entails that the court consider the nature of discrimination through a careful examination of the beneficiaries’ relationship with the will maker, and all the factors that would lead the will maker to that decision.

So what does this all mean?

Contemporary community standards could be broken down into two types of obligations;

This means that a will-maker has legal and moral obligations to certain peoples when writing their will. Legal obligations, under the Wills Variation Act, state that if a will-maker dies leaving a will that doesn’t make adequate provision for the maintenance of spouse or children, the court has the discretion to order a provision it deems adequate. The main objective of legal obligations, especially when it comes to spousal support, is to relieve any economic hardship and promote economic self-sufficiency within a reasonable time frame from death. This act ensures that financial affairs are taken care of during a time of hardship and grief. At times, a will-maker might make decisions based on the beneficiary’s ability to take care of the estate. To preserve testamentary autonomy, the court may refuse to make an order in favor of a person whose character makes it justifiable to be disentitled from the estate.

Moral obligations, on the other hand, refer to society’s reasonable expectations of what a judicious person would do under the situation. While moral obligations might look different according to the standards of society, discrimination based on factors such as sexual orientation, gender, and disability are undoubtedly frowned upon by the court. Moral obligations ensure that the will-maker has sufficient reasons for disinheriting or limiting benefits from those that may be entitled. For example, in the case of Peden v. Peden, Smith et al, 2006 BCSC 1713, the will-maker disinherited a beneficiary (his homosexual son) on the basis of his sexuality. His will was then appealed by the court, as sexuality is “not a factor in today’s society justifying a judicious parent disinheriting or limiting benefits to his child”.

To appeal to the court, persons that feel that they are entitled to an estate can apply to vary a will, which would start the process of determining whether the estate planning has judicious.

In a recent B.C. Court case, four B.C. sisters had successfully attained their estate entitlement after their parents left them only 7% of their 9 million dollar estate, leaving the remaining 93% to their two sons. The B.C. Court ruled in favour of the four sisters on grounds of contemporary standards, stating that the sisters had a heavy hand in building their parents fortune and caring for their parents in their old age. Read more here.

Contemporary community standards create equitable guidelines for the upholding of moral decency. Despite ever changing societal and community values, they create a fair and judicial process to estate planning. However, every case is different, due to different family dynamics, as well as cultural standards in a multicultural Canadian society. Therefore, the court, if overriding one’s autonomy, must undergo careful examinations of each issue, which creates a dynamic judicial system that is tailored to the moral specifications of a variety of issues.

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Moral Obligations When Writing your Will - Contemporary Standards of B.C.

In most cases, a will-maker has testamentary autonomy, the complete freedom to dispose of one’s estate as they see fit. However, certain situations necessitate the involvement of the court to override the wishes of the will-maker. When drafting your will, what moral obligations do you keep in mind? Do strained social and familial ties serve as enough of a reason to cut certain people out of your will? If the reasons are seemingly discriminatory, (such as based on gender, race, sexuality, social class, or otherwise) does the court have the discretion to decide on your behalf? To understand the extent of your autonomy in your will, it is highly beneficial to understand the bounds of contemporary community standards in BC court.

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