Most common law and civil law jurisdictions have laws in place to provide a safety net so
that those who are unfairly disinherited will be able to claim a share in a deceased's estate. Since
1920, British Columbia has been one of those jurisdictions in which a testator's distribution scheme
may be varied at the discretion of the Court. However, the absence of a stated purpose of the
legislation, a broad judicial discretion to determine what is adequate provision for a spouse and
children and the failure of the Supreme Court of Canada in Tataryn v. Tataryn to bring certainty
and predictability to the law point to a need for reform.
The goal of this thesis is to complete the sentence "the purpose of legislation restricting
testamentary freedom is . . . . " and to make recommendations for legislative change to accomplish
this purpose. An overview of the law in British Columbia today and the arguments for reform will
be outlined in chapters 1, 2 and 3. Chapters 4 through 8 will examine a number of topics to extract
policies which might assist in the formulation of a dependant's relief statute's purpose. Historical
concepts, family, intestacy and wrongful death legislation as expressions of values will be
reviewed. From the doctrine of unjust enrichment, a cause of action independent of a statute, a
contract or a tort, but now widely used in claims between family members, will be extracted
principles which recognize compensation for the contribution of services and money between family
members. Empirical studies about testators' intentions, family and other private relations will be
noted in chapter 9. Lastly, chapter 10 will make a number of recommendations for reform. These
include:
(a) A statement of the statute's purpose. Persons who have lived together in a relationship of
some permanence with financial and emotional interdependence should share equally the
assets acquired during their time together and the survivor's need for support should be
recognized. Children's support needs should also be met but the testamentary autonomy of
persons should be subject only to these two objectives.
(b) The broadening of categories of claimants to include cohabitants and stepchildren with the
introduction of age and dependency criteria for the latter.
(c) Criteria to be used in making reasonable financial provision for spouses and children.
(d) A priorities scheme.
(e) The right to waive the statutory rights by agreement.
No attempt is made to provide recommendations for all of the issues that would arise under
a new statute. / Law, Peter A. Allard School of / Graduate
| Identifer | oai:union.ndltd.org:UBC/oai:circle.library.ubc.ca:2429/5978 |
| Date | 05 1900 |
| Creators | Ramsay, David Peter |
| Source Sets | University of British Columbia |
| Language | English |
| Detected Language | English |
| Type | Text, Thesis/Dissertation |
| Format | 9921005 bytes, application/pdf |
| Rights | For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. |
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