BC Supreme Court upholds testator's moral obligation to estranged son in wills variation case

In a recent wills variation case, the BC Court of Appeal has upheld the testator's moral obligation to her estranged son.

In Bautista v Gutkowski Estate, 2023 BCSC 1485, Pacita Gutkowski left a will before she died. Under the terms of the will, Pacita left 25 percent of her estate to her son, Nicolas Bautista, and divided the remaining 75 percent between her sister, Dolores Laigo, and her niece, Rosalie Olbinado.

Nicolas filed a notice of civil claim, seeking a wills variation under the Wills, Estates, and Succession Act (WESA). In his affidavit, Nicolas described his relationship with his mother. The testator was not married when she gave birth to Nicolas, her only child. When Nicolas was three months old, his mother left him with his grandparents in the Philippines. His mother then moved to Canada to work as a nanny.

Relationship with the testator

Nicolas detailed sporadic contact with his mother over the years and occasional financial support. He described how his mother provided financial assistance to her parents and siblings but clarified to Nicolas that she did not have an easy life in Canada. When Nicolas was in his second year of high school, he started working at a farm to contribute to the costs of his upkeep so that he did not need to ask his mother for money.

Nicolas alleged that Dolores and Rosalie told his mother that he was "womanizing" after marriage. His communication with his mother soon deteriorated. He believed Dolores and Rosalie prevented a closer bond between him and his mother due to financial motivations. The court noted that Dolores and Rosalie did nothing to try to repair the relationship between the testator and Nicolas. It was also apparent to the court that they did not think highly of Nicolas.

Nicolas suspected that Dolores did not want him to have a close relationship with his mother, so he would not financially benefit from her assets. Nicolas further claimed that his relatives did not keep him apprised of his mother's deteriorating health. He text messaged her repeatedly without response, and he did not know that she was ill until she had died. Nicolas believed that his mother should have provided more for his needs than she did in her will because he was her only child, she knew of his financial situation, and he had not been a burden to her.

The BC Supreme Court noted that Nicolas is unemployed and looking for work as a carpenter with a daily wage of about $12 a day. Additionally, he does not have a home of his own.

Moral obligation

The court explained that under the WESA, the court has the power to vary a will. It has broad discretion to make just and equitable orders in the case's specific circumstances. The court cited case law stating that WESA has two primary statutory objectives. The first is to ensure that adequate, just, and equitable provision is made for spouses and children of a will-maker, and the second is to protect the will-maker's autonomy.

The court further said that whether a testator made adequate provision under a will to a spouse or children is assessed objectively in light of current societal legal and moral norms. Additionally, the court noted that a testator would not generally have a legal duty to an independent adult child unless the child contributed to the estate.

The court found that the testator, in this case, had no legal duty to provide for Nicolas once he became an adult. However, the testator had a legal obligation to support Nicolas when he was a child, and it was not clear to the court that she did so to the extent required. Nonetheless, the court said the issue was whether she had a moral obligation to do so when making her will. The court noted that the testator recognized she had such a moral obligation by providing a 25 percent interest in her estate to Nicolas.

The court noted that the testator did not provide enough money to support Nicolas when he was an adolescent, and as a result, he worked part-time on a farm to contribute to the cost of his upbringing. Furthermore, the testator did not petition to have Nicolas join her in Canada once she was financially able to do so.

The court accepted Nicolas' evidence that he felt abandoned by his mother and unwanted by his father. He also had difficulty with the strictness in which he was brought up. Moreover, the court considered that the testator was silent in response to Nicolas' attempts to reach out to her after their estrangement, which enhanced her moral duty to Nicolas.

The court observed that the testator was angry with Nicolas when she wrote her will. Despite preparing her will with the assistance of counsel, the testator did not explain, in writing, why she preferred her sister and her niece over her son.

The court concluded that since Nicolas is the testator's only child, he is the sole beneficiary with a moral basis for his claim. Dolores and Rosalie are the testator's sister and her niece. The court emphasized that the testator had no legal or moral obligation to them.

After carefully reviewing the evidence, the court found that various considerations point to a moral obligation towards Nicolas. Accordingly, the court ordered the varying of the will to ensure that it makes adequate, just, and equitable provision for Nicolas while, at the same time, interfering as little as possible with the testator's autonomy and expressed intention as set out in her will. As a result, the court concluded that 60 percent of the estate should go to Nicolas, and the remaining 40 percent should be shared between Dolores and Rosalie.