Relations between parents and children are always tricky, and perhaps never more so than when parents dispose of their estates: who inherits and how much?
A recent Court of Appeal for Ontario decision affirms that parents have no “moral obliga- tion” to provide for their independent adult children, a ruling that one father’s only two offspring hope to challenge at the Supreme Court of Canada.
“This is real discrimination,” said Ottawa family lawyer Leon- ard Levencrown, representing the brother and sister left out of their father’s will. “Why should dependent children and a spouse be entitled when independent adult children are not? This should be a right for all children, adult or young.”
When Albert Verch died in 2008, he left his entire estate to his daughter-in-law, who separ- ated from Verch’s son shortly thereafter. The trial judge assessed the estate at $953,492.
Acknowledging that Ontario’s Succession Law Reform Act does not provide any inheritance rights for independent adult children, Levencrown said his appeal will rest on a Supreme Court decision, Tataryn v. Tataryn Estate  S.C.J. No. 65. In that case, based on a B.C. statute, the highest court ruled that: “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.”
Says Levencrown: “There is a moral obligation on the part of a testator to make provision for his children regardless of whether they are dependent or not. A child is a child.”
But the appeal court in Verch v. Weckwerth  O.J. No. 2092, flatly rejected Leven- crown’s argument. In a unani- mous decision, the court ruled that the “moral obligation claim” in Ontario is “misconceived.”
It added: “The appellants point to no authority in Ontario for the proposition that a competent testator’s autonomous distribu- tion of his or her property as reflected in a properly executed will may be displaced or set aside by the courts in the exercise of their discretion pursuant to some alleged overarching concept of a parent’s obligation to provide on death for his or her independent adult children.
“The cases relied on by the appellants in support of their moral obligation claim emanate from a different province (British Columbia) and involve legislation from that province that knows no counterpart in Ontario.”
Furthermore, the appeal court said: “They advance no depend- ant’s relief claim under the Suc- cession Law Reform Act. Nor, on this record, is such a claim available to them.”
Toronto estate lawyer Jordan Atin says the appeal court deci- sion clarifies that the moral obligation principle is restricted to dependents.
“You need a different key to open the gate in Ontario than in British Columbia,” Atin said. “The testator must have been providing support to a depend- ent or under a legal obligation to provide such support. You have to unlock that gate before the courts will even consider a moral obligation.”
Mary Fraser, lawyer for the executor in Verch’s contested will, agrees that the Ontario appeal court judgment means moral-obligation considerations are restricted by applicable provincial legislation.
“In Ontario and the other com- mon law provinces, except for British Columbia, that means dependent persons,” she said. “This decision confirms that a tes- tator does not have an obligation to provide for independent chil- dren and the courts have no right to intervene on a moral basis.”
Fraser, who also acted as agent for the favoured daughter-in- law at the appeal, added: “From time immemorial, it’s always been the law that as long as tes- tators can comprehend that others might have a moral claim to their bounty, they can act as capriciously as they please. The view is that individuals, rather than the state, are best able to determine who should receive their generosity.”
British Columbia’s Wills Varia- tion Act does not exclude adult independent children from mak- ing a claim against a will. But two B.C. lawyers practising in the field maintain that the Supreme Court’s Tataryn decision has no relevance in Ontario.
“In Tataryn, the court was inter- preting B.C. legislation,” said Helen Low, who teaches succes- sion law at the University of Brit- ish Columbia and is a Fasken Martineau partner in Vancouver. “Tataryn did not say it applied to other provinces. In fact, it does not apply to other provinces.”
Fiona Hunter, who has contrib- uted to several reference books on trusts and wills, says Levencrown will be lucky if the Supreme Court even considers the case, let alone decides in his clients’ favour.
“I don’t see the Supreme Court imposing such a general moral obligation based on the Ontario legislation,” said Hunter, a partner at Horne Coupar in Victoria. “But good on counsel for taking a broader position than what we think of Tataryn. Who knows? The common law progresses in incre- ments, depending on the judges.”
By: MICHAEL BENEDICT – THE LAWYERS WEEKLY – Published May 23, 2014