Tataryn v. Tataryn Estate (1994), 46 B.C.A.C. 255 (SCC);
75 W.A.C. 60
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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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)
(23398)
Indexed As: Tataryn et al. v. Tataryn Estate
Supreme Court of Canada
La Forest, L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
July 14, 1994.
Summary:
During a 43 year marriage a husband and wife, through their joint efforts, amassed an estate worth over $300,000. The property, which was in the husband’s name, consisted of their matrimonial home, a rental property and savings. The couple had two sons, Edward and John. The husband died. In his will he left the rental property to Edward and a life estate for his wife in their matrimonial home. He also made the wife the beneficiary of a discretionary trust of the income from the residue of the estate, with Edward as trustee. After the wife’s death, everything would go to Edward. The husband explained in his will why he left nothing to the other son, John. The wife and John claimed against the estate under the Wills Variation Act.
The British Columbia Supreme Court, per Paris, J., in an oral decision, revoked the gift to Edward of the rental property and granted the wife a life estate in that property, directed that John and Edward each receive an immediate gift of $10,000 out of the residue of the estate, and directed that when the wife died, the residue of the estate was to be divided one-third to John and two-thirds to Edward. The wife and John appealed.
The British Columbia Court of Appeal, in a decision reported 20 B.C.A.C. 218; 35 W.A.C. 218, dismissed the appeal, but clarified that certain expenditures should be made from the residue and that the trustee’s discretion to encroach on the residue to make payments to the wife 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”. The wife appealed.
The Supreme Court of Canada allowed the appeal and substituted an order for that of the trial judge, providing that the wife was to have title to the matrimonial home, a life interest in the rental property and the entire residue of the estate after payment of immediate gifts of $10,000 to each son. Upon the wife’s death, the rental property would be divided one-third to John and two-thirds to Edward. Costs would be paid from the estate.
Family Law – Topic 6600
Dependent’s relief legislation – Purpose of legislation – The Supreme Court of Canada discussed the purpose of the Wills Variation Act – See paragraphs 10, 16, 17, 25.
Family Law – Topic 6601
Dependent’s relief legislation – Interpretation of legislation – The Wills Variation Act, s. 2(1), provided that if a testator’s will does not make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may order that the provision that it thinks “adequate, just and equitable in the circumstances” be made out of the testator’s estate for the spouse and children – The Supreme Court of Canada stated that the Act must be read in light of modern values and expectations – See paragraph 15.
Family Law – Topic 6603
Dependent’s relief legislation – What constitutes “adequate, just and equitable” – The Wills Variation Act, s. 2(1), provided that if a testator’s will does not make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may order that the provision that it thinks “adequate, just and equitable in the circumstances” be made out of the testator’s estate for the spouse and children – The Supreme Court of Canada discussed the meaning of the phrase “adequate, just and equitable” for purposes of s. 2(1) – See paragraphs 12 to 33.
Family Law – Topic 6610
Dependent’s relief legislation – Moral obligation of testator – General – [See
Family Law – Topic 6663
].
Family Law – Topic 6663
Dependent’s relief legislation – Entitlement – Requirement of need – The Wills Variation Act, s. 2(1), provided that if a will does not provide for the proper maintenance and support for the testator’s spouse or children, the court may make an order that provision that is “adequate, just and equitable in the circumstances” be made out of the testator’s estate for the spouse and children – The Supreme Court of Canada interpreted s. 2(1) and set out the test for varying a will – The court rejected a strict needs-based test – Rather, the court must consider two current social norms as a guide to determining what is “adequate, just and equitable in the circumstances” – These two norms being the testator’s legal obligations and the testator’s moral duties toward spouse and children – See paragraphs 9 to 33.
Family Law – Topic 6666
Dependent’s relief legislation – Entitlement – Existence of moral duty – [See
Family Law – Topic 6663
].
Family Law – Topic 6672
Dependent’s relief legislation – Entitlement – Proper test – [See
Family Law – Topic 6663
].
Family Law – Topic 6682
Dependent’s relief legislation – Considerations on making awards – Moral duty of testator – [See
Family Law – Topic 6663
].
Family Law – Topic 6682.1
Dependent’s relief legislation – Considerations on making awards – Legal obligations of testator – [See
Family Law – Topic 6663
].
Family Law – Topic 6701
Dependent’s relief legislation – Awards – Revision of will re disposition of property – During a 43 year marriage a couple amassed a $300,000 estate in the husband’s name – The husband died and by will left one son, Edward, a rental property and the wife a life estate in their matrimonial home – Further, the wife was beneficiary of a discretionary trust of the income from the estate residue, with Edward as trustee – After the wife’s death, everything would go to Edward – Nothing was to go to their other son, John – The Supreme Court of Canada, applying the Wills Variation Act, s. 2(1), granted the wife title to the matrimonial home, a life interest in the rental property and the entire estate residue after payment of $10,000 to each son – Upon the wife’s death, the rental property would be divided two-thirds to Edward and one-third to John.
Family Law – Topic 6763
Dependent’s relief legislation – Practice – Appeals – The Supreme Court of Canada stated that “for the purposes of this statute [Wills Variation Act], 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 …” – See paragraph 11.
Words and Phrases
Adequate, just and equitable
– The Supreme Court of Canada discussed the meaning of this phrase as it appeared in the Wills Variation Act, R.S.B.C. 1979, c. 435 – See paragraphs 12 to 33.
Cases Noticed:
Swain v. Dennison, [1967] S.C.R. 7, refd to. [para. 11].
Livingston, Re (1922), 31 B.C.R. 468 (S.C.), refd to. [para. 18].
Hall, Re (1923), 33 B.C.R. 241, refd to. [para. 18].
Stigings, Re (1924), 34 B.C.R. 347, refd to. [para. 18].
Brighten v. Smith (1926), 37 B.C.R. 518 (C.A.), refd to. [para. 18].
Walker v. McDermott, [1931] S.C.R. 94, consd. [para. 19].
Barker v. Westminster Trust Co. (1941), 57 B.C.R. 21 (C.A.), approvd. [paras. 21, 27].
Michalson Estate, Re, [1973] 1 W.W.R. 560 (B.C.S.C.), approvd. [para. 21].
Granfield v. Williams (1981), 29 B.C.L.R. 150 (C.A.), approvd. [para. 21].
Price v. Lypchuk Estate (1987), 11 B.C.L.R.(2d) 371 (C.A.), approvd. [para. 21].
Dawson Estate, Re (1945), 61 B.C.R. 481 (S.C.), disapprovd. [para. 22].
Hornett Estate, Re (1962), 38 W.W.R.(N.S.) 385 (B.C.S.C.), disapprovd. [para. 22].
Harding, Re, [1973] 6 W.W.R. 229 (B.C.S.C.), disapprovd. [para. 22].
Bates v. Bates (1981), 9 E.T.R. 235 (B.C.S.C.), refd to. [para. 27].
Bates v. Bates (1982), 11 E.T.R. 310 (B.C.C.A.), refd to. [para. 27].
Richards v. Person (1982), 34 B.C.L.R. 350 (S.C.), affd. (1983), 49 B.C.L.R. 43 (C.A.), refd to. [para. 27].
Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384; 19 R.F.L.(2d) 165; 117 D.L.R. (3d) 257; 8 E.T.R. 143, refd to. [para. 30].
Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67; [1986] 5 W.W.R. 289; 2 R.F.L.(2d) 225; 46 Alta. L.R.(2d) 97, refd to. [para. 30].
Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 30].
Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 30].
Brauer v. Hilton (1979), 15 B.C.L.R. 116 (C.A.), refd to. [para. 31].
Cowan v. Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.), affd. (1990), 37 E.T.R. 308 (B.C.C.A.), refd to. [para. 31].
Nulty v. Nulty Estate (1989), 41 B.C.L.R.(2d) 343 (C.A.), refd to. [para. 31].
Bell v. Roy Estate et al. (1993), 23 B.C.A.C. 146; 39 W.A.C. 146; 75 B.C.L.R.(2d) 213 (C.A.), refd to. [para. 31].
Statutes Noticed:
Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, generally [para. 30].
Wills Variation Act, R.S.B.C. 1979, c. 435, sect. 2(1) [para. 9].
Authors and Works Noticed:
Amighetti, Leopold, The Law of Dependants’ Relief in British Columbia (1991), pp. 12 [para. 10]; 36 [paras. 19, 22]; 37 [para. 22]; 56 [para. 26].
British Columbia, Law Reform Commission, Report on Statutory Succession Rights (Report No. 70) (1983), p. 154 [para. 29].
Counsel:
Rhys Davies and Kerry D. Sheppard, for the appellant;
Robin J. Stewart, for the respondent.
Solicitors of Record:
Davis & Co., Vancouver, British Columbia, for the appellant;
McLachlan Brown Anderson, Vancouver, British Columbia, for the respondent.
This appeal was heard on May 3, 1994, before La Forest, L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on July 14, 1994, by McLachlin, J.
