Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff sought to modify her inheritance to be held in a Henson trust to preserve disability benefits.

• The will already granted equal distribution of a substantial estate among all three children.

• No evidence from the Housing Society confirmed loss of housing if inheritance was received directly.

• Plaintiff’s claim relied primarily on self-reported financial and medical needs.

• Court was not satisfied the testator breached her moral duty under section 60 of WESA.

• Application was dismissed, but leave to reapply was granted for possible reconsideration.

Facts and outcome of the case

Background and parties involved

The case was heard in the Supreme Court of British Columbia. The plaintiff, Kathryn Elizabeth Damgaard, applied to vary her late mother Elizabeth Jean Damgaard’s will. Kathryn, aged 63, is one of three adult children and receives disability benefits while living in subsidized housing in Vancouver operated by More Than a Roof Mennonite Housing Society. She claimed that receiving her inheritance directly would jeopardize her benefits and housing eligibility.

The estate in question is significant, with each child expected to receive over $1.8 million. Kathryn requested the court to vary the will to place her share into a Henson trust—a fully discretionary trust intended to shield beneficiaries with disabilities from losing access to means-tested public benefits.

Legal basis of the claim

Kathryn’s application was made under section 60 of the Wills, Estates and Succession Act (WESA), which allows courts to vary a will that fails to make adequate provision for the proper maintenance and support of the deceased’s children or spouse. Kathryn argued that by not placing her inheritance in a Henson trust, the deceased did not adequately provide for her, thus breaching her moral duty.

The legal framework emphasized both legal and moral obligations of the testator, relying on principles from Tataryn v. Tataryn Estate and Dunsdon v. Dunsdon. The central question was whether the will adequately provided for Kathryn in light of her disability and financial circumstances.

Court's analysis and findings

Justice Wilson acknowledged that the court had authority to order the creation of a trust under WESA and referenced past cases such as Barnsley v. Barnsley and Willott v. Willott Estate where such trusts were created. However, the Court drew a distinction in this case because Kathryn had not been disinherited—instead, she received an equal share of the estate.

The court found the evidence supporting Kathryn’s position to be insufficient. It was primarily self-reported, with no corroborating testimony or documentation from health professionals or the Housing Society. The court was not convinced that receiving her inheritance directly would definitely cause her to lose housing or disability benefits.

In evaluating the adequacy of the will, the Court noted that the estate was large, and Kathryn’s share was more than enough to support both her essential needs and quality of life enhancements. There was no clear evidence that such an inheritance would place her in financial jeopardy.

Outcome

The court ultimately dismissed Kathryn’s application to vary the will. However, recognizing the summary nature of the proceedings and the potential for more complete evidence in the future, Justice Wilson granted Kathryn leave to reapply under SCCR 9-7(16). This preserves the opportunity for the court to revisit the issue should better evidence be presented.