In Tataryn v. Tataryn, [1994] 2 SCR 807, the will-maker had 2 adult independent children (J and E) and a spouse. The will-maker disliked their son J due to his religious convictions. In the Will, he acknowledged that he was excluding his son due to their strained relationship. The will-maker also left very little to his wife, despite her efforts in being a stay at home mom, due to his fear that she would give his assets to J. The will-maker left his wife a life estate in the matrimonial house and made her the beneficiary of a discretionary trust of the income from the residue of the estate, with their son E as trustee. After her death, everything was to go to E. The spouse and J claimed against the estate under the Wills Variation Act, s. 2(1) (as it was) for a lack of adequate provisions for their proper maintenance and support. This case was appealed up to the Supreme Court of Canada. The judge determined that the wife should have title to the matrimonial home, the rental property (for her lifetime, then to E), and everything else in the estate, other than a cash gift of $10,000 to each son.
HOW DID A LAWYER HELP?
In this case, the will-maker's only legal obligations during his lifetime were toward his wife. This is because they had been in a long marriage in which they both contributed to their joint estate. Had they separated during his lifetime, the wife would have a claim to 50 percent of the estate. The children in this case did not have any specific needs, and since the estate was mostly in the form of real property, a modest gift to them appropriate. It is important to consult with a lawyer to understand the variables that a judge will consider in an estate variation claim. In some circumstances, adult children will have needs that must be accounted for. In others, a spouse may be wholly dependent on the joint estate to survive. Family law legislation cannot be claimed unless a couple has separated before the date of death, and thus estate litigation lawyers will be key in ascertaining the amount owed to a widowed spouse.
