Farris Lawyers, Isabel Romeral and Jake Harrigan, co-authored the following case summary on ‘Strange Estrangement – B.C. Case Comment on Bautista v. Gutkowski Estate, 2023 BCSC 1485’:

In wills variation cases, the Court will consider estrangement as a factor when assessing the strength of a moral claim by a plaintiff. There are a significant number of cases in which the Court has determined that a period of estrangement between the will-maker and their adult child negated the moral duty owed by the will-maker, undercutting the child’s claim to vary the will.  The Court has historically been more likely to arrive at this conclusion if the estrangement continues up to the death of the will-maker without reconciliation.

However, even among cases of unreconciled estrangements, not all are created equal. Unlike in the family law context where blame for the breakdown of a relationship is not a relevant consideration, the Court will consider who is at fault for an estrangement in the context of wills variation cases. For adult children, if the decision to cut off contact was initiated or perpetuated by the will-maker, the Court may not consider the estrangement to negate the moral obligation owed to the adult child.

Such was the case in Bautista v. Gutkowski Estate, 2023 BCSC 1485. This case involved Nicolas Bautista, an only child, who sought to vary the will of his mother, Pacita Bautista Gutkowski. Pacita’s Will initially left 25% of her estate to Nicolas, with the remaining 75% divided between Pacita’s sister, Dolores Bautista Laigo, and her niece, Rosalie Bautista Olbinado.

Nicolas argued that he had a moral claim to a larger share of the estate than what was provided for in the will, and that Pacita had promised to leave him a larger share of her estate. The Court heard evidence of Nicolas and Pacita’s relationship, including that Pacita had left Nicolas in the Philippines when he was only three months old to move to Canada, ostensibly abandoning him and spending very little time with him before her death approximately 47 years later. Although she did not ever push for Nicolas to join her in Canada, she did provide limited financial support to his grandparents to help raise him – alongside his aunts and uncles – in the Philippines.

Over the years, Nicolas reached out to Pacita and attempted to reconcile their estranged relationship. It was Nicolas’s aunts and uncles that, at least in part, exacerbated the ongoing estrangement by communicating unfavorable rumors of Nicolas’s behaviour to Pacita. Pacita was angered by what was relayed to her, and despite Nicolas’s well-intentioned pleas for reconciliation, he received no replies from his mother before her death in 2021. The Court found that Nicolas had not engaged in misconduct nor was he of poor character such as to warrant his family’s rebuke.

In its analysis of the estrangement, the Court relied on the decision of Justice Balance in McBride v. Voth, 2010 BCSC 443, who stated:

[132] …The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, 2023 BCSC 1485 (CanLII) Bautista v. Gutkowski Estate Page 13 it will likely not negate a testator’s moral duty, and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children …

Ultimately, the Court concluded that Pacita was both the initial cause and the obstinate perpetuator of the estrangement, and varied the Will to provide Nicolas with a 60% share of the estate.

Bautista v. Gutkowski reinforces the ever-present risk of wills variation litigation where a parent fails to make adequate, just, and equitable provision for an adult child, and serves as a reminder that a parent’s unilateral decision to alienate a child – even where such estrangement may feel or be supported by close family members – is not a full answer to a wills variation claim.

Isabel’s practice is focused on estate planning, estate administration and trusts.

Jake’s practice is focused on estate litigation, as well as employment and labour disputes.