Canadian court varies will on basis of moral obligation to estranged child

Tuesday, 21 November 2023
The Supreme Court of British Columbia (the Supreme Court) has agreed to vary a mother’s will in favour of her estranged son on the basis of “moral obligation”, after he was raised by extended family on a different continent to her.

Pacita Bautista Gutkowski (the deceased) gave birth to her only child, Nicolas Bautista (the plaintiff), in 1974. When the plaintiff was three months old, the deceased moved from their home in the Philippines to work in Canada and left the plaintiff to be raised by his grandparents. He had no contact with his father.

The plaintiff met his mother at the age of seven and saw her every three to four years. The deceased provided financial assistance for his living expenses and education until his second year of college. The plaintiff alleged that the deceased made clear to him that her financial situation was difficult and accordingly he started part-time work in high school to contribute to his own upkeep.

In later life, the plaintiff alleged that the deceased’s sister and niece (the defendants) drove a wedge between him and the deceased causing the relationship to deteriorate. He claimed that this, along with a lack of any communication about the deceased’s deteriorating health, was due to the defendants hope that he would not benefit from the deceased’s estate.

When she died, the deceased left a will providing that the plaintiff received 25 percent of her CAD900,000 estate, with the other 75 percent going to the defendants.

The plaintiff accordingly asked the Supreme Court to vary her will under section 60 of the Wills, Estates and Succession Act. Section 60 provides that a court can order an “adequate, just and equitable” provision if a will does not “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children”.

The court considered that the deceased had “abandoned” the plaintiff as a baby, having not brought him to Canada when she was financially able, and had chosen in later life to be estranged from him, despite his attempts to create a relationship. Further, it noted that the defendants’ evidence about the plaintiff’s character or misconduct was limited and based in hearsay. The deceased’s provision of 25 percent of her estate to the plaintiff also showed a recognition that she did have a moral obligation to her son, the court found.

“The various considerations point to a moral obligation towards [the plaintiff],” the judge ruled. “I am varying the Will to ensure that it makes adequate, just, and equitable provision for [the plaintiff] while, at the same time, interfering as little as possible with [the deceased’s] autonomy and expressed intention as set out in her Will.”

Accordingly, the Supreme Court varied the deceased’s will to provide 60 percent of the estate to the plaintiff and 20 percent each to the two respondents (Bautista v Gutkowski Estate, 2023 BCSC 1485).


The content displayed here is subject to our disclaimer. Read more