Family Maintenance and Support: Balancing Testamentary Intentions with Legal and Moral Obligations

Leslie Taylor

In the recent decision of Campbell v Ensminger, 2022 ABQB 330, the Honourable Justice D.K. Miller of the Alberta Court of King’s Bench attempts to balance a father’s testamentary intentions with his legal and moral obligations to his adult daughter in the context of a Family Maintenance and Support Claim.

On January 8, 2016, Mr. Hodosi executed a Will leaving specific cash amounts to his accountant and a friend, with the residue of his estate to be divided three ways between his former spouse, his daughter and his grandson (the “2016 Will”).

On September 11, 2017, Mr. Hodosi executed a new Will leaving nothing for his family members. Instead, Mr. Hodosi left approximately $500,000.00 in specific bequests to non-family members who were known to be important to him (i.e. accountant, lawyer, friends) and dividing the residue of his estate (approximately $1,000,000.00 subject to approximately $300,000.00 in tax) amongst three beneficiaries (the “2017 Will”). The three residual beneficiaries were also specific beneficiaries under the 2017 Will.

Mr. Hodosi died less than three weeks later on September 28, 2022.

Following Mr. Hodosi’s passing, his 53 year old daughter brought a claim challenging his capacity and seeking amounts from his Estate as Family Maintenance and Support.

With respect to her claim for Family Maintenance and Support, the daughter agued that she was a dependent child of Mr. Hodosi and unable to earn a living by reason of physical disability. The Court agreed the daughter’s physical and mental challenges were significant and prevented her from obtaining employment. The daughter’s son (Mr. Hodosi’s grandson) also had significant health challenges.

At the time of Mr. Hodosi’s death, his daughter and him had been estranged for some time including having only had three face-to-face visits over a twenty year period. The Court found that the fact that there was no relationship between the Mr. Hodosi and his daughter was a clear reason for him to draft the 2017 Will, changing what he designated in the 2016 Will.

Importantly, while the daughter was found to have been a “dependent” for the last few years of her adult life, Mr. Hodosi had never financially supported her. Furthermore, he was unaware of her physical and mental challenges and his obligation to support her.

The Court summarized the law on Family Maintenance and Support claims as follows:

[108] The leading authority regarding claims for family maintenance and the proper level of support is Tataryn v Tataryn, [1994] 2 SCR 807, 1994 CanLII 51 [Tataryn], of the Supreme Court of Canada. This case arose out of British Columbia which has slightly different legislation, however the principles are very applicable to the Wills and Succession Act of Alberta. Important principles deriving from this case include:

1. 1. The court must consider legal and moral obligations when determining the appropriate maintenance and support. If there are legal obligations the law would impose upon a person during his lifetime and society’s reasonable expectations on what a judicious person would do in the circumstances, the court must consider an order of support. Combining these legal and moral obligations will provide an “adequate test and equitable results in the circumstances of the case”.
   2. The Supreme Court of Canada confirmed in Tataryn and other Alberta cases have followed the principle that the appropriate maintenance and support under the Wills and Succession Act is not limited to a needs based approach.
   3. When conflicting claims exist, the legal and moral obligations take priority over simply moral claims. It is the court’s responsibility to weigh the strength of each claim and assign a priority.
   4. The Alberta Court of Appeal referred to the principles of Tataryn and how they should be applied in the Koma v Tomich Estate, 2011 ABCA 186 [Tomich], at para 18:

The leading decision of Tataryn discusses a number of principles:

• • • • What is “adequate” goes beyond the bare “necessities”, and the statute does not contemplate a “needs-based” test. An award under the Act can take account of the family’s lifestyle and the claimant’s realistic expectations [pp. 816, 819];
      • The statute attempts to balance the interests of testamentary autonomy with the need to provide economic protection to surviving family members. Neither of these values can outweigh the other. Where possible, the court should attempt to recognize both interests [pp. 815-6, 823-4];
      • An award under the Act should not only consider the legal obligations of the deceased towards the family, but should also have regard to the moral obligations of the deceased. The law recognizes a moral obligation to a surviving spouse and dependent children, and a lesser obligation to adult children [pp. 820-1, 822-3];
      • What is “adequate” must be measured against contemporary community standards, having regard to what “a judicious person would do in the circumstances, by reference to contemporary community standards” [pp. 814, 820-1];
      • The extent to which all the legal and moral claims can be met will depend on the size of the estate. On the other hand, because there is no longer any need to provide support for the deceased, the surviving family members may be entitled to more than the support they would have received during the deceased’s lifetime [p. 823];
      • The statute gives the court a wide ranging discretion [pp. 814-5].

1. 5. Further, the Tomich case and others have commented on the conflict between testamentary autonomy as against applications and claims brought by family members under the legislation such as the Wills and Succession Act:

In Tataryn the Supreme Court noted the competing values of testamentary autonomy and the legitimate claims and expectations of surviving family members. The Court made a number of observations on this subject. Firstly, the Court noted at p. 823 that where the estate permits, both objectives should be achieved. Secondly, the Court indicated at pp. 823-4 that there is a range of estate plans that will satisfy the legal and moral obligations of the testator, and that “provided that the testator has chosen an option within this range, the will should not be disturbed”, and the “will may provide a framework for the protection of the beneficiaries”. Thirdly, the Court directed that the freedom of the testator to dispose of his property should be interfered with only so far as the statute requires. Fourthly, the court has a wide ranging discretion. In this case the parties took extreme positions: the appellant asked that the whole of the undistributed estate be given to her unconditionally, whereas the respondents argued that no provision at all should be made. The court is not bound by these positions, and may formulate any creative solution that fits the circumstances of the particular estate.

[Para 30, Tomich]

An expert economic witness completed a report estimating two scenarios ranging from annual support payments to the daughter of $48,500.00 per year to $74,000.00 per year, as well as cost of care and tax gross ups which resulted in a total claim of $1.263 million minimum, and a maximum of $1.846 million. With respect to this report, the Court opined as follows:

• That the daughter’s claim was essentially a request that the Court ignore or strike the 2017 Will “in the face of over thirty years of the [daughter’s] “independence” from the Testator, and only recently becoming “dependent” in the sense of not being able to work at all due to her serious health problems.”
• That the financial information put forward by the daughter painted a picture of spending and lifestyle which was completely detached from any sense of the daughter’s reality.
• That the daughter’s status as a dependent was never communicated to Mr. Hodosi during his lifetime.

Ultimately however, the Court confirmed that the daughter was the only person with both a statutory legal and moral claim to Mr. Hodosi’s Estate. The Court was persuaded to exercise its discretion to award Family Maintenance and Support under section 93 of the Wills and Succession Act in contemplation of the following factors:

• That the disposition in the 2016 Will which gave the vast majority of Mr. Hodosi’s estate to the daughter, her son, and her mother – from that time to the 2017 Will there appeared to be nothing further that would seem to alienate the daughter from Mr. Hodosi.
• Hodosi’s promise that the daughter was supposed to get something from a relative’s estate.
• The clear and desperate need as a “family member” requiring support from either the taxpayer in the form of social assistance or family, as the daughter could not earn a livelihood and support herself at her stage in life or in the reasonable foreseeable future.
• The fact that after the daughter’s parents’ divorce no actual support was paid by Mr. Hodosi.

In determining the appropriate award of Family Maintenance and Support, the Court opined that it would be unjust to award the entirety of Mr. Hodosi’s Estate to his daughter, so as to ignore his intentions and relationships which meant so much to him in his final months of his life.

In crafting an award for Family Maintenance and Support which balanced Mr. Hodosi’s testamentary intentions and the daughter’s claim, the Court seemingly prioritized the daughter’s claim over two specific non-profit corporate gifts of $40,000 which were cancelled and instead directed to the daughter along with the entire residue of Mr. Hodosi’s Estate.