"[I]ndeed, it is a vain thing to imagine a right without a remedy".1

In British Columbia, s. 60 of the Wills, Estates and Succession Act ("WESA")2 obligates will-makers to make adequate provision for their spouse and children from their estates:

Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker's estate for the spouse or children.

Despite the apparent simplicity of this provision and its predecessor in s. 2 of the Wills Variation Act,3 a complex body of case law has developed interpreting the legal and moral obligations owed by will-makers, and the availability of the estates they leave behind to satisfy the claims of their surviving spouses and children. Through this case law, it has emerged that despite the availability of this statutory right, will-makers can structure their affairs so as to avoid the claims of their spouses and children, because in British Columbia, only those assets that form part of a will-maker's estate are subject to wills variation claims. This article considers the potential utility of the equitable concept of "good conscience" and constructive trust to address this situation.

When WESA came into force in 2014, it consolidated and repealed the Estate Administration Act,4 the Probate Recognition Act,5 the Wills Act6 and the Wills Variation Act.7 Although this was a considerable legislative undertaking, the wills variation scheme was brought forward with only minor changes. Notably, the legislation did not incorporate an anti-avoidance provision to deter will-makers from intentionally divesting their estates of assets in order to avoid potential wills variation claims.

Apart from restrictions on the ability of will-makers to contract out of s. 60 of WESA or to stipulate that a gift to a beneficiary will fail, should that beneficiary commence a wills variation claim,8 there are no specific limitations on estate planning strategies that seek to avoid wills variation claims. Such planning has even been upheld despite being arguably contrary to the spirit of the legislation. To address the potentially unconscionable situation of meritorious will variation claimants being denied access to estate assets, litigators have sought to use various causes of action and equitable remedies, including the Fraudulent Conveyance Act ("FCA"),9 undue influence and public policy. Disappointed claimants and their counsel have crafted creative claims seeking to correct or even prevent a situation where a will-maker intentionally avoids the wills variation legislation.10 To date, however, these mechanisms have been met with limited success.

The lack of a statutory anti-avoidance provision can create the unjust situation of a "right without a remedy" for those who have a meritorious variation claim. As only assets forming part of a will-maker's estate are available to satisfy a wills variation claim, surviving spouses or children with meritorious claims are effectively denied any recourse through their statutory right under s. 60 of WESA where will-makers structure their affairs so that all of their assets pass outside their estate. This article therefore seeks to bring awareness to the potential use of the substantive "good conscience" constructive trust to address such injustice in appropriate circumstances.

Part one of this article outlines the wills variation legislation in British Columbia and the unsuccessful efforts to incorporate anti-avoidance provisions. Part two traces the historical development of the constructive trust and the emergence of the concept of good conscience as its unifying principle. Part three argues that estate litigators should invoke the concept of good conscience constructive trust to address the situation of certain meritorious wills variation claimants whose remedy is deliberately rendered moot.

To read the full article, please click here.

* The writers wish to thank Aaron Pearl and Julia Tikhonova (then articled student) for their assistance.

Footnotes

1.Broom's Legal Maxims, 10th ed (London: Sweet & Maxwell, 1939) at 118, cited in Allen v College of Dental Surgeons of British Columbia, 2007 BCCA 75 at para 36.

2.SBC 2009, c 13.

3.RSBC 1996, c 490.

4.RSBC 1996, c 122.

5.RSBC 1996, c 376.

6.RSBC 1996, c 489.

7.Supra note 3.

8.Morgan v Pengelly Estate, 2011 BCSC 1114; Kent v McKay, 1982 CanLII 788 (BCSC).

9.RSBC 1996, c 163 [FCA].

Originally published by The Advocate.

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