What is the test for a family member to succeed in having the court re-apportion the assets of a deceased's estate?
British Columbia, Canada
The following excerpt is from Smith v. Smith, 2003 BCSC 1171 (CanLII):
The analytical framework for determining whether a family member will succeed in having the court re-apportion the assets of a deceased’s estate is set out in Tataryn v. Tataryn Estate 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807, (“Tataryn”). The test in Tataryn requires the weighing of competing claims of two sets of obligations: legal obligations and moral obligations. A child, as a rule, has no legal claim on a parent’s estate, so the question is the extent, if any, of the “moral” obligation. In Tataryn, the court held that, with two “grown and independent sons”, the moral claims “cannot be put very high”.
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