Tataryn v Tataryn ([1994] 2 SCR 807)

Key takeaways {#takeaways}

• BC courts can vary a will that fails to make adequate, just and equitable provision for a spouse or child.
• Tataryn set a two-step test: the will-maker's legal obligations first, then moral obligations judged by community standards.
• Wills variation claims now run under section 60 of WESA, with a 180-day deadline after probate.

Tataryn v Tataryn at a glance {#summary}

Yes. In British Columbia, a spouse or child of the person who died can ask the court to vary the will if it does not make adequate provision for them. Tataryn v Tataryn is the Supreme Court of Canada decision that explains how courts decide these claims.

Most people assume a will is the last word. Alex Tataryn thought so. After 43 years of marriage, he left his wife Mary no property of her own — just a life estate in their house and whatever income their son Edward chose to pay her from a $315,264.69 estate she had helped build. The Supreme Court of Canada disagreed. Its 1994 decision gave Mary title to the home and the bulk of the estate, and set the test BC courts still apply when a will is challenged.

The facts {#facts}

Alex and Mary Tataryn were married for 43 years. He was a shoemaker. She worked as a waitress until 1975 and mainly in the home after that. The Court described them as "industrious and frugal." Through their joint efforts they built an estate worth $315,264.69, all held in Alex's name when he died. It was made up of the house they lived in, a rental property next door that Alex had inherited from his father, and $122,629.69 in the bank. Mary held $25,000 in her own name.

They had two sons, John and Edward. Alex had disliked John since John was six years old, and the Court noted this dislike eventually "became obsessional." Mary stuck up for John, and he kept living in the family home. Edward lived in New Brunswick.

Alex did not want to leave John anything. He also feared that if he left anything to Mary outright, she would pass it on to John. So his will gave Mary only a life estate in the matrimonial home — the right to live there, but not ownership. The income from the rest of the estate went into a discretionary trust, with Edward as trustee deciding what Mary would receive. On Mary's death, everything went to Edward. John got nothing.

Mary and Alex had never discussed what would happen on death. Mary testified that they had an agreement to save for their old age, and that she trusted her husband. Learning that everything had been left to Edward came as a shock to her.

Mary and John both claimed against the estate under the Wills Variation Act. The trial judge gave Mary a life estate in the rental property, ordered an immediate gift of $10,000 to each son, and directed that on Mary's death the residue be split one-third to John and two-thirds to Edward. The BC Court of Appeal upheld that result, with a clarification about how the trustee's discretion should be exercised. Mary appealed to the Supreme Court of Canada.

The legal issues {#issues}

The Supreme Court of Canada had to decide what "adequate, just and equitable in the circumstances" means in BC's wills variation legislation. Two competing approaches had grown up in the case law:

1. A needs-based approach: the court should only interfere with a will where a spouse or child would otherwise be left in need.
2. A broader approach, going back to Walker v McDermott (1931): spouses and children can be entitled to a fair share of the estate even without proven need.

The Court also had to decide how a testator's freedom to leave property as they choose — testamentary autonomy — fits with the statutory duty to provide for family, and then apply the answer to Mary's claim.

What the court decided {#decision}

The Court was unanimous. McLachlin J wrote for a seven-judge panel, and the appeal was allowed.

The Court rejected the argument that the Act is only about keeping dependants off welfare. The statute's broad language, read in light of modern values, "confers a broad discretion on the court." What was adequate in the 1920s may not be adequate today: in the Court's words, "the search is for contemporary justice."

McLachlin J set out two kinds of societal norms that together answer what is "adequate, just and equitable":

• Legal obligations — what the law would have required of the will-maker while alive: spousal support, division of family property, and claims like unjust enrichment (where one person unfairly benefits at another's expense).
• Moral obligations — "society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards."

Where claims conflict, claims that would have been legally enforceable during the will-maker's life generally rank ahead of purely moral claims. Testamentary autonomy still matters: where several ways of dividing the estate would all be adequate, just and equitable, a will that picks any option within that range should not be disturbed. A will "is to be interfered with not lightly but only in so far as the statute requires."

Applying the test, Alex's legal obligations were owed only to Mary. The marriage was long, and she had contributed much to the assets. Had the couple separated, she would have been entitled to support and a share of the family assets — so her legal claims alone entitled her to at least half the estate. Her moral claim to the couple's old-age savings was strong. The sons' moral claims, as grown and independent children who had not contributed much to the estate, "cannot be put very high."

The Court substituted its own order. Mary received title to the matrimonial home, a life interest in the rental property, and the entire residue of the estate. Each son received an immediate gift of $10,000. On Mary's death, the rental property would be divided one-third to John and two-thirds to Edward.

Where the law stands now. The Wills Variation Act that Tataryn interpreted was repealed effective 31 March 2014 (BC Reg 148/2013), when the Wills, Estates and Succession Act (WESA) came into force. The operative wording survives almost unchanged in section 60 of WESA: a court may vary a will that does not make "adequate provision for the proper maintenance and support" of the will-maker's spouse or children, ordering what is "adequate, just and equitable in the circumstances." Because section 60 carries forward the same test the Court construed in Tataryn, the two-step framework described above remains the starting point for a wills variation claim in BC. WESA also sets strict procedural rules: under section 61, the claim must be started within 180 days of the grant of probate and served within a further 30 days.

Can you contest a will in BC? {#the-test}

Yes — but only certain people, on certain grounds, within a strict deadline. Under section 60 of WESA, the will-maker's spouse or children can ask the court to vary the will. "Spouse" under section 2 of WESA includes someone who lived with the will-maker in a marriage-like relationship for at least two years. Children include independent adult children — that has been the law since Walker v McDermott, and Tataryn confirmed it.

The question the court asks is the one Tataryn framed: did the will make adequate provision, and if not, what provision would be adequate, just and equitable? The court measures the will against the will-maker's legal obligations first, then their moral obligations, judged by what a judicious person would do by today's community standards.

Two cautions. First, the court does not rewrite wills to make them perfect. If the will-maker chose any option within the acceptable range, the will stands. Second, the 180-day clock under section 61 runs from the grant of probate, and the court must be asked to hear the claim within it — this deadline is unforgiving.

The framework {#numbers}

Step	What the court examines	Sources the court draws on
1. Legal obligations	What the will-maker would have owed the claimant while alive	Spousal support law, family property legislation, unjust enrichment and constructive trust principles
2. Moral obligations	What a judicious person would do, by contemporary community standards	Length and nature of the relationship, contributions, the size of the estate, the will-maker's legitimate concerns
3. Ranking claims	Where the estate cannot meet every claim, which come first	Legal claims generally rank ahead of moral claims; some moral claims are stronger than others
4. Testamentary autonomy	Whether the will falls within a range of acceptable options	If it does, the will is not disturbed; the court interferes only as far as the statute requires

What this means if you're separating in Surrey {#bc-impact}

Tataryn is an estates case, but it matters when a relationship ends — because separation changes who can bring a wills variation claim.

Under section 2(2) of WESA, spouses stop being spouses for wills variation purposes when the relationship ends: for married couples, when an event occurs that triggers a family property interest under the Family Law Act; for unmarried couples, when either person ends the marriage-like relationship. If your former partner dies after that point, you generally cannot claim as a spouse under section 60 — your remedies lie in family law instead. That makes it important to resolve property and support promptly after separation rather than leaving things open. Our pages on divorce in BC and separation agreements explain those routes.

The reverse also matters. Tataryn measured the will against what Mary would have received had the couple separated — support and a share of family assets. Family law entitlements set the floor for what a will must provide a surviving spouse. If you are negotiating a separation agreement, or planning a will after remarrying, that link between family law and estates law cuts both ways. Many of these disputes settle without trial; mediation is often where that happens. For more decisions like this one, see our case studies.

How a lawyer uses Tataryn {#in-practice}

For a surviving spouse, a lawyer starts where Tataryn starts: what would this client have received under family property and support law if the couple had separated the day before the death? That figure anchors the legal-obligation claim. A long marriage with real contributions — like Mary Tataryn's 43 years — supports a claim to at least half the estate before moral claims are even considered.

For adult children, Tataryn is more cautious ground. The Court accepted that independent adult children have moral claims where the estate permits, but said those claims "cannot be put very high" absent contribution or dependence. A lawyer builds that claim on evidence of contribution to the estate, need, or the estate's size.

For will-makers, Tataryn is a drafting checklist. A lawyer tests the proposed will against the client's legal and moral obligations and asks whether it lands within the defensible range. If the client wants to favour one child or exclude another, the lawyer papers the reasons — while warning that reasons alone did not save Alex Tataryn's will.

And on both sides, the lawyer diarizes the WESA section 61 deadline: 180 days from probate, with service within 30 days after that.

Frequently asked questions {#faq}

Who can contest a will in BC?

Only the will-maker's spouse or children can bring a wills variation claim under section 60 of WESA. A spouse includes someone who lived with the will-maker in a marriage-like relationship for at least two years. Children include adult, financially independent children. Other relatives, friends, and caregivers cannot use section 60, though other legal claims may be open to them.

How long do I have to contest a will?

Under section 61 of WESA, the proceeding must be started within 180 days from the date the grant of probate is issued in BC, and the pleading must be served on the executor within 30 days after that period ends (the court can extend service, but not the 180-day start deadline). Getting advice early protects your position.

Can a parent disinherit a child in BC?

Sometimes. Tataryn says independent adult children have moral claims that the court weighs, but those claims rank below legal claims and can be outweighed or negated by the circumstances. Alex Tataryn's stated reasons for excluding his son John did not prevent the court from awarding John a share. Each case turns on its own facts, the estate's size, and the evidence about the relationship.

References {#references}

• Tataryn v. Tataryn Estate, [1994] 2 SCR 807 — official Supreme Court of Canada judgments site: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1161/index.do — accessed 6 Aug 2026 (full judgment text read; note: automated fetch returned HTTP 403, page read in a live browser session). All quotations and figures in this commentary were taken from this source.
• Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC) — CanLII mirror: https://www.canlii.org/en/ca/scc/doc/1994/1994canlii51/1994canlii51.html — FAILED to load (HTTP 403), accessed 6 Aug 2026; not relied on.
• Wills, Estates and Succession Act, SBC 2009, c 13, ss 2, 60, 61 — https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01#section60 — accessed 6 Aug 2026 (sections 2, 60 and 61 read in full).
• Wills Variation Act, RSBC 1996, c 490 — Table of Legislative Changes (3rd Edition), confirming repeal of the Act by SBC 2009, c 13, s 194, effective 31 Mar 2014 (BC Reg 148/2013): https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/E3tlc96490 — accessed 6 Aug 2026.
• Walker v. McDermott, [1931] SCR 94 — discussed as cited within Tataryn itself; the original decision was not separately fetched, and statements about it here reflect only the Tataryn Court's description.