Under the Wills, Estates, and Succession Act, children and spouses of a deceased have the right to apply to vary the will if it does not adequately provide for them. In wills variation claims, the court plays a delicate role balancing the interests of honouring the testator’s wishes while also making adequate provision for the testator’s spouse and children.

Often, wills variations are commenced because one sibling gets a larger share. Other times, children are shocked to find they have been left out of the will entirely, with the parent in their will citing estrangement as the reason for choosing not to provide anything to that child on their passing.

A Parent’s Obligation to Provide for Their Children in Their Will

The law presumes that parents have a moral obligation to provide for their children in their will, even when the child is a self-sufficient adult. An equal distribution of the estate between all of a will-maker’s children is prima facie compliant with a parent’s moral obligations to their children (McKendry v. McKendry).

However, parents do not have a legal duty to equally provide for their children in their wills (Ryan v. Delahaye Estate). As such, it does not necessarily offend the principles of moral obligations for parents to gift a child less than the child’s siblings or even to leave them nothing at all.

Not Every Reason to Disinherit Is a Good Reason

Moral obligations to children can be negated by objectively valid and rational reasons for disinheritance. When the testator has included in their will a reason for disinheriting a child, the court will scrutinize that reason in a wills variation dispute.

Specifically, the reason for disinheritance must be rationally connected, supported by facts, proportional, and in accordance with contemporary values of Canadian society. The following examples explain how these factors are considered.

Rationally Connected

This factor questions whether a judicious parent could have made the decision to disinherit based on the reasons that existed.

In Holvenstot v. Holvenstot Estate, the deceased mother and her son had been involved in litigation over the son’s alleged abuse of a power of attorney during the mother’s lifetime and the son’s attempt to wrongfully have the mother declared legally incompetent. The mother handwrote complaints about her son, including that he had tried to take her land and stocks.

Given the money and emotional upset the litigation caused the mother, these reasons were found by the court to have a logical connection to the act of disinheritance.

Supported by Facts

In Patterson v. Lauritsen, a mother wrote her son out of her will because she believed he had a drug addiction. The court considered this reason for disinheritance to not be supported by the evidence, and this was solely an “unproved suspicion” held by the mother.

Proportional

The court in Enns v. Gordon Estate stated that one occasion of insulting a parent’s character resulting in complete disinheritance would “seem to be a vast overreaction”.

In Accordance With Contemporary Values of Canadian Society

In Lowres v. Lowres, a mother disinherited her son because she disapproved of his wife’s ethnic background. The court ruled that in modern Canadian society, this is not an acceptable reason to exclude one’s child from one’s estate.

Estrangement

Estrangement between the parent and child and the reasons for the estrangement can justify a disinheritance or an unequal distribution by potentially diminishing the parent’s moral obligation to the child (McBride v. McBride Estate).

Where the reason for disinheritance is estrangement between parent and child, the court will consider who is primarily responsible for the breakdown in the relationship, the length of the estrangement, what attempts were made to reconcile, and who initiated reconciliation attempts in determining whether the subsequent disinheritance was rational.

While a parent has a diminished moral duty to their child during a period of estrangement, the moral duty must be assessed at the time of the parent’s death. As such, if there was a subsequent reconciliation prior to death, then the prior period of estrangement may not be considered as rational as a reason.

Who Is Responsible for the Estrangement and What Impact Does It Have?

Fault for a broken relationship is usually shared (Rampling v. Nootebos). However, courts will consider whether one party can be said to be primarily responsible for the rift in determining the impact on the moral obligation and whether a child is entitled to relief.

Where an independent adult child was primarily responsible for the estrangement, the court has considered this child’s role in causing the relationship breakdown as a factor to support that the disinheritance was rational (Bell v. Roy Estate, Hall v. Hall). For example, a child who steals from their parent or unilaterally refuses to communicate with them holds responsibility for the estrangement and is less likely to be entitled to relief from disinheritance.

Impact of Family Violence on the Estrangement

However, a child’s decision to become estranged must be considered in light of the parent’s previous abuse or neglect of the child, whether physical or emotional, and any other history of family violence (Rampling). Although wills variation is not intended to be a means of compensation for family violence, courts will consider what a judicious parent would do to fulfil their moral obligation to make amends with their child where the parent’s treatment of the child is the cause of estrangement (Doucette v. Clarke).

Even where estrangement exists at the fault of the child, a parent’s moral obligations may not be entirely diminished and may still vary the will to make provision for the estranged child.

Disinheritance Is Not Always the Final Word

Parents have a legal and moral obligation to adequately provide for their children in their wills. These obligations exist even when the child is an independent adult, so long as the estate can accommodate provision. Where adequate provision is not made, children have the right to apply to vary the will. For a disinherited independent adult child to succeed in varying their parent’s will, they must establish that the reasons for disinheritance were false, unwarranted, or contrary to contemporary Canadian social norms.

Contact Meridian Law Group in Vancouver for Experienced Estate Litigation Services

Whether you have been excluded from a parent’s will, received less than a sibling, or are involved in a dispute over a BC estate, understanding your rights under the Wills, Estates and Succession Act is essential. Wills variation claims often involve complex issues such as estrangement, unequal inheritances, moral obligations, and challenges to a deceased’s estate plan.

The estate litigation lawyers at Meridian Law Group assist clients throughout Vancouver and across British Columbia with will variation claims, estate disputes, and inheritance litigation. If you are questioning whether a disinheritance was justified or whether a will adequately provides for a spouse or child, timely legal guidance can help you understand your options. To discuss your circumstances and learn more about your rights, please contact us online or call (604) 687-2277.