The British Columbia case of Bautista v. Gutkowski 2023 BCSC 1485 will provide the answer.
Nicolas Bautista was the only son of Pacita – who died in Vancouver in 2021.
Pacita left a Will.
Nicolas sued his late mother’s estate because, under the terms of the Will, Pacita left 25% of her estate to Nicolas and the rest to her sister and niece.
The total value of Pacita’s estate was $936,050.
Pacita was unmarried when she gave birth to Nicolas. When he was 3 months old, Pacita immigrated from the Philippines to Canada to work as a nanny. She left Nicolas in the care of her parents.
Pacita provided her parents with financial assistance for Nicolas’ living expenses and paid for his education until he was in his second year of college.
Nicolas first met his mother when he was 7 years old. After their first visit, Nicolas saw his mother every 3-4 years when she visited him in the Philippines. Nicolas testified that his relationship with his mother improved when he turned 21. Nicolas got married when he was 23, and his mother provided money for his wedding. Nicolas has a son. By the time of this lawsuit, Nicolas was separated and unemployed.
The leading authority on the variation of a Will is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. In Tataryn, the Supreme Court of Canada ruled that a court has a broad discretion to make orders that are just and equitable in the specific circumstances of the case and in light of contemporary standards. Certain principles emerged from Tataryn – the first is to ensure that adequate, just and equitable provisions are made for spouses and children of a Will-maker, and the second is to protect the Will-maker’s autonomy.
The question of whether a Will-maker made adequate provision under a Will to a spouse or children is measured objectively, assessed in light of current societal, legal and moral norms. Legal norms are obligations owed to a spouse or dependent children. Moral norms are obligations “found in society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards”.
This judge also referred to the case of Hall v. Hall, 2011 BCCA 354 that decided that a Will-maker will not generally have a legal duty to an independent adult child unless the child contributed to the estate. A Will-maker’s moral duty to adult children is assessed from the perspective of a reasonable testator, that is, a “judicious parent”.
The judge also considered the case of Dunsdon v. Dunsdon, 2012 BCSC 1274 and the factors to determine a Will-maker’s moral duty to independent adult children including the:
-relationship between the Will-maker and child, such as abandonment, neglect and estrangement
-overall value of the estate
-contributions by the beneficiary child
-reasonably held expectations of the beneficiary child
-standard of living of the Will-maker and beneficiary child
-gifts and benefits made by the Will-maker outside the Will
-Will-maker’s reasons for disinheriting the beneficiary child
-financial need of the beneficiary child and other personal circumstances including disability of the beneficiary child
-misconduct or poor character of the beneficiary child
-competing beneficiaries
The judge considered that, over the course of his life, until his mother’s death, Nicolas spent very little time with his mother. Pacita built a life for herself in Canada, but did provide for Nicolas’s support by giving money to her parents, who were raising Nicolas. After Nicolas became an adult, Pacita disapproved of his lifestyle and their relationship ended. Nicolas’s attempts to reach out to his mother by text and email were met with silence.
After carefully considering Nicolas’s history, the judge ruled that Pacita had no legal duty to provide for Nicolas once he became an adult. She did have a legal obligation to support him when he was a child, and that Pacita (barely) met her financial obligations to Nicolas. The judge found that Pacita did have a moral obligation to provide more support for Nicolas in her estate plan.
In the end, the judge concluded that 60% of Pacita’s estate should go to Nicolas and the rest to her sister and niece.
Note that this case was decided under the laws of British Columbia. In Ontario, under section 57 of the Succession Law Reform Act, a claimant must demonstrate that the deceased was providing support, or was under a legal obligation to provide support before the deceased’s death.
Editorial note: Originally published in 2025; republished for reference.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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