League and Williams Lawyers

Tag: disinheritance

  • My Parent Gave More of the Estate to My Sibling: Can I Challenge the Will?

    My Parent Gave More of the Estate to My Sibling: Can I Challenge the Will?

    Sometimes, children are surprised when they find out their sibling is inheriting more from their parents, despite their similar relationship. They might it’s unfair and wonder if they can challenge the will and change it, even after their parents’ death. In BC, courts can vary a will that is ruled unfair. To be considered fair, does a will have to give equal provisions to children with the same relationship to the will-writer?

    In short, the answer is no. A fair will by law is one that makes “adequate provision for the proper maintenance and support of the will-maker’s spouse or children”. This means that will-writers still have the testamentary freedom to create their will however they wish. The restriction is that they’re not able to unfairly disinherit a spouse or child. If your sibling is receiving more of the estate, there’s usually not much you can do. To have the will varied, claimants must prove the will didn’t provide adequate provision for their life’s maintenance and support.

    For the sake of this blog post, let’s look consider an example to help understand the principles of unfair wills. Let’s say a parent elects to give $5,000 of their estate to their son, and $150,000 to their daughter.

    When You Can Challenge the Will

    Using the above example, with no details of the circumstances it can be difficult to determine if this provision is unfair. The courts must look at external factors and specifics of the case to fully understand the nature of the provisions. If the son chooses to challenge the will, the courts would look at many different factors in determining whether this $5,000 is an adequate provision or not. Some characteristics and factors the courts will take into account include:

    • The beneficiary’s living situation,
    • The beneficiary’s financial situation and needs,
    • The size of the estate, and
    • The nature of the estate assets.

    Usually, the courts will put a heavy emphasis on the beneficiary’s financial needs. If the son was working a job as a newspaper delivery boy, he could likely prove a financial need in this example and have the will varied. If unfairly disinherited, a child might depend more on government assistance, burdening taxpayers. The child could avoid filing for bankruptcy and social assistance if they inherited a larger estate share. This is the primary function of the disinheritance laws in BC today.

    When a Child is Validly Disinherited

    Even if a parent has a valid reason to disinherit, they’re still able to give the child an inheritance if they choose to do so in their will.

    There are exceptions to this rule. A valid, rational reason consistent with modern Canadian values must justify a disinheritance in a will, according to the Wills, Estates and Succession Act (WESA). Most circumstances allow estrangement as a valid reason for disinheritance. In the same example, if the son ran away at a young age and never returned, he likely wouldn’t inherit, and the parent could validly disinherit him. If a parent can validly disinherit a child, they can give this child as small an inheritance as they want. In most cases, this would mean leaving nothing to the child in the will. For more information, read our blog on valid reasons for disinheriting a child.

    In the end, if one of your siblings received a bit more of an estate than you, there is not a significant chance of successfully challenging the will. You might be able to challenge the will if you believe your inheritance is not adequate or fair due to its extremely different value.

    If you believe you’ve been unfairly disinherited by a parent or spouse, contact an experienced estate lawyer today. We will ensure you receive the inheritance that you’re entitled to – whether that means challenging the will or not.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Will Challenges Affect All Children, Even Those Not Challenging

    Will Challenges Affect All Children, Even Those Not Challenging

    BC has some of the most favourable estate laws for children who have been unfairly disinherited by their parents. The courts insist that parents provide ‘adequate provisions for the proper maintenance and support’ of their children unless they have legally valid reasons to not do so. When children believe they’ve been unfairly disinherited, they can challenge the will. Some might be surprised to know that under s.61(4) of the Wills, Estates and Succession Act, the courts will treat any will variation challenge as a proceeding on behalf of all the children, even those not directly involved in the challenge.

    Will Challenges on Behalf of All the Children

    When one child begins a will challenge, it is likely that all of the children will be impacted. Some children could be left with less inheritance than expected, while others are given more of the estate.

    In order to disinherit someone, the will-writer must have a reason that is valid, rational, and consistent with modern Canadian values.

    The most common type of will challenge arises when a parent completely disinherits one child, but splits the estate equally amongst their other siblings. The child challenges the will before the courts, who may modify the will to make provision for the disinherited child. The other children are usually opposing the challenge, defending their case. In these instances, the children are usually arguing on their own behalf trying to maximize their inheritance.

    In some cases, a child who defends against a will challenge might even benefit from the variation of the will. The case of Graham v. Chalmers (2010) shows how this might happen in BC.

    Defending Against Yourself?

    In the case of Graham v. Chalmers, the will-writer, Delores, had named her two children, Janet and Sandi, and her two grandchildren as beneficiaries of her will. Delores had a legal obligation to provide an adequate, just and equitable provision to Janet and Sandi, though there was no legal obligation to give an inheritance to her grandchildren. Delores elected to equally distribute the estate amongst the two children and two grandchildren, 25% each. However, Janet found this distribution problematic because both of the grandchildren were Sandi’s children. In essence, 75% of the estate was being given to Sandi’s “side of the family” and 25% to Janet’s.

    Janet challenged the will, claiming that she was not given enough of the estate. The courts considered what ‘adequate provision’ means in this scenario, and concluded that the will did not provide adequately for Janet. The will was varied to give Janet and Sandi each 40% of the estate, and the grandchildren 10% each. In this case, Sandi was defending the claim as the executor, however, she ended up benefitting from the successful challenge. Instead of receiving 25% of the estate, she ended up with 40%.

    An Example From Case Law

    In Bowling Estate (Re) (2022), the BC Supreme Court considered an application from a beneficiary who had sought legal advice when the executor ignored their questions about the estate administration. The deceased had appointed one of her four children as executor, and divided the estate equally among the children. Administration was somewhat delayed, as it took over one year to receive a grant of probate. However, the estate wasn’t complicated as there wasn’t conflict between children regarding their shares, and the estate was mostly liquid.

    One year after probate was granted, one of the siblings asked the executor questions about the administration, and was ignored. The executor never answered these questions, or explained why she was ignoring them. The executor began distributing assets from the estate, and her sibling continued to ask questions about the administration. Eventually, the sibling retained a lawyer, hoping to force the executor to answer her questions transparently and provide estate accounts. Both the executor and the sibling claimed costs ranging from $10,000 to $11,500 for their expenses relating to the application and the formal passing of accounts.

    The Opinion of the Court

    In general, reasonable legal fees related to estate administration are covered by the estate. The judge had to consider if the executor’s conduct was so improper that she should not be able to recover her legal expenses from the estate, and if it was reasonable for the sibling to recover her $11,500 in legal fees for bringing the application. The judge pointed out that there were two other siblings who had chosen not to participate in the application, who had no objections to the administration or the formal accounts. They would be adversely impacted by an order to assign costs to the estate, as it could lower the total value of their respective shares by up to $5000. 

    The significant impact of an order for costs upon the other beneficiaries was a key reason for the court’s decision. The judge ordered that the executor could only recover $6000 from the estate, and was liable for the remaining $4000. Finally, the court acknowledged that the sibling had acted reasonably in her concern for the executor’s lack of communication, but pointed out that the conflict could have been resolved outside of court. Because the sibling consented to the formal accounts, the litigation only took place because the sisters couldn’t agree on costs. The court ordered the executor to personally pay $6000 to her sibling in costs.

    Ultimately, the executor was personally liable for her unreasonable delay and lack of communication to some degree. However, the court was clear that conflicts of this nature, particularly where are beneficiaries will suffer as a result of the conflict, should be resolved outside of court where possible.

    Reminders for Beneficiaries

    As a beneficiary, you can still be impacted by a will variation challenge that you are not directly involved in. If other beneficiaries claim they’ve been unfairly disinherited, you should be prepared to lose parts of your inheritance. Any will challenge in BC will proceed on behalf of everyone who may have been unfairly disinherited or unjustly compensated. If you’re unsure how you might be affected by a family member’s will challenge, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Adoption and Inheritance: What You Need To Know

    Adoption and Inheritance: What You Need To Know

    While BC has relatively generous estate laws for children who have been unfairly disinherited, estate planning or litigation can become complicated for families who have either adopted children or given children up for adoption. When there are no valid reasons to disinherit, by law, parents and spouses must provide adequate provisions for the life and maintenance of the lives of their children and spouse in their wills. In blended families and families with adopted children, questions and complications can arise over the definition of who a “child” really is.

    Rights of Adopted Children & Adopting Parents

    In BC, a legally adopted child is treated the same as a biological child would be for estate purposes. A will provision making a gift to “my children” would, by default, include any adopted children. In some cases, children are taken care of by friends or family members of their parents, while never being lawfully adopted. There is no concept of common law adoption like there is for common law spouses; no matter how long someone is caring for a child, they are never their lawful parent unless a legal adoption takes place. A child is not entitled to a caretaker’s estate even if the caretaker was with them for the entirety of their childhood.

    When an adopted child is disinherited from an adoptive parent’s will, they have the same right as a natural child to claim to vary the will. If there was an invalid reason for disinheriting the child, the will can be modified to give the adopted child their fair entitlement to the estate. This procedure will be exactly the same as for a natural born child who was never adopted, who challenges a biological parent’s unfair will.

    Rights of Adopted Children & Biological Parents

    Parents who have given a child up for adoption can still leave them an inheritance if they specify so in their will.

    As described in section 3 of the Wills, Estates and Succession Act (WESA), when a child is adopted they are no longer entitled to the estate of their biological parent, unless otherwise specified in the will. Once a child has been adopted by another family, that child is no longer considered their biological parent’s child for estate purposes. A will provision making a gift to “my children” would not naturally include any children who have been legally adopted by someone else.

    In the case of Boer v. Mikaloff (2017), a child who was given up for adoption was re-united with his birth mother late in her life. Before her death, she named her biological son as a beneficiary in her will, giving him part of her estate. The son was looking to make a will variation claim, arguing that he should be considered to have standing in the claim even though he was no longer legally her child because he had been made a beneficiary. The question the courts looked to answer was, “does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act?” In conclusion, the courts ruled that the child was a child of the adopted parent now and being named as a beneficiary of his biological mother’s will did not change this. The judge ruled that for estate purposes, no, an adopted child is not a lawful child of the biological parent. The will was not varied and the son was given the specified amount in his biological mother’s will, nothing more.

    This case is consistent with the facts of the Wills Estates and Succession Act; however, it can be troubling for adopted children who develop loving relationships with their biological parents. For more information on this case, read our blog and watch our video blog on adopted children and their biological parent’s estate.

    If you’re an adopted child or parent of an adopted child who is unsure of how these laws impact your situation, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Valid Reasons for Disinheriting a Child

    Valid Reasons for Disinheriting a Child

    For people who are unfairly disinherited, BC has some of the most sympathetic laws in all of Canada. However, parents can disinherit their children from their will if they have valid and rational reasons. Many provinces allow will-writers to completely disinherit their adult children, giving the will-writer nearly complete testamentary autonomy. However, BC courts regularly vary unfair wills that are guilty of disinheriting children for invalid reasons.

    Why BC Courts Modify Unfair Wills

    Upon first hearing this, people wonder, why can BC courts modify someone’s will? In BC, the will-writer uses a will as their final opportunity to do right by their family members. If the testator leaves a child without adequate provision, it could leave them requiring financial aid in the future. The will-writer’s disinheritance of their child could burden tax-payers, as the aid probably comes from government services.

    Basically, BC courts recognize that each person has a right to do what they want in their will – testamentary autonomy. However, this freedom has to be balanced with the best interests of society as a whole.  That’s why BC does not allow disinheritance without valid or rational reasons.

    Valid Disinheritance in BC Law

    According to the Wills, Estates and Succession Act:

    “Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”

    If the will-writer fails to make adequate provision for proper maintenance or support, the courts have the ability to change the will to reflect what they deem to be adequate, just and equitable in the circumstances. This could include large modifications of the main provisions of a will.

    What Makes a Reason Valid?

    To properly disinherit an adult child or a spouse, the will-writer must have reasons that are:

    1. Valid – a true fact;
    2. Rational – a logical connection to the disinheritance, and;
    3. Consistent with modern Canadian values – not racist, sexist, discriminatory, etc.
    A child in BC can be disinherited if the reason is valid, rational and consistent with modern Canadian values.

    If the reasons for disinheritance are not valid, rational and consistent with modern Canadian values, the courts can modify the will.

    Generally, the most common reason for disinheritance is estrangement. Estrangement is when two people are not on friendly terms and refuse to communicate with one another. If a child is the primary determinant in the estrangement, this is typically a valid and rational reason for a parent to disinherit them. Like all reasons for disinheritance, it’s largely dependent on the individual situation as to whether the reason is rational or not. Courts will deem a reason as rational if a reasonable parent could choose to disinherit for the reason given. Importantly, this is not to be confused with saying a reasonable parent would always choose to disinherit for the reason given.

    Examples of Valid Reasons for Disinheritance

    The case of Holvenstot v. Holvenstot (2012)is a case where the courts allowed disinheritance. Disinherited by his mother, a son appealed to the BC Supreme Court to alter her will. A number of purported reasons for the disinheritance were addressed by the court, some of the main reasons shown to be true were:

    1. The son lied about growing marijuana on his mother’s property which ended in the mother being arrested and convicted for drug possession;
    2. The son tried and failed to have the mother declared mentally incompetent by the court;
    3. The son kept numerous items of the mother’s, requiring her to bring legal action against him to get them back, and;
    4. The son tried to trick the mother into giving him ownership of her land.

    The son had to prove the irrationality of these reasons, given the determination that the above facts were true. Ultimately, the judge ruled the reasons as rational due to their logical connection to the disinheritance. The courts ruled that a reasonable parent could make the decision to disinherit their child in the above circumstances. Additionally, none of these reasons for disinheritance violated modern Canadian values.

    How to Properly Disinherit a Child

    As a parent who wants to disinherit a child from their will, you should prepare a document detailing exactly your reasons for the disinheritance. Providing specific details and examples will help the courts understand the reasons for disinheriting the child. The courts are unlikely to overrule a disinheritance if you present a reason that is valid, rational, and aligns with Canadian values.

    If you’re concerned about disinheritance in your estate planning – contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Estate Dispute Case: Changing an Unfair Will

    Estate Dispute Case: Changing an Unfair Will

    A recent BC Supreme Court case involved unfair wills with an estate distributed unequally amongst sons and daughters. The case of Grewal v. Litt (2019) involved six children and their parents’ mirror wills. The wills were drafted to reflect cultural traditions not in accordance with Canadian values under the Wills, Estates and Succession Act (WESA). When the siblings were all young, the Litt family immigrated to Vancouver from India and lived on a farmland. The family maintained a successful farm business. Their property property had a value of approximately $9 million at the time of trial. Upon the death of both the parents, their will stated that:

    • Each of the four daughters were to receive $150,000 (about 1.7% of the total value of the estate), and;
    • Each of the two sons were to receive the rest of the estate’s value, evenly split amongst the two (about $4.2 million or 46% of the estate each).

    Details of the Case

    In court, the daughters claimed the will was unfair and that their parents discriminated against them based on their gender. They argued that they contributed just as much, if not more than, the brothers to the family farm. They further explained how the parents discriminated against them throughout their lives, giving the sons more gifts and less chores to do. The daughters argued that this was due to Sikh traditions where it is common practice to favour sons over daughters.

    In BC, the courts have the power to revise unfair wills and invalidate wills.

    Conversely, both sons agreed that the will was unjust, but disagreed on the notion of an equal estate distribution among all siblings. The sons acknowledged that their sisters should inherit a larger portion of their parents’ estate, but they couldn’t reach a consensus with their sisters on the exact amount. The sons argued that the parents’ testamentary autonomy should still be respected and they as sons should receive a higher share of the estate – the will should be varied but it should also not be split evenly amongst the six children.

    In the End, Was the Will Unfair?

    The case went through a thorough analysis of the contributions of each of the children on the family farm. The purpose was to determine if, according to the Wills, Estates and Succession Act, “the will provided an adequate provision for the proper maintenance and support of the will-maker’s spouse or children.” If the court deemed the will did not, it would vary the will to represent an adequate, just and equitable distribution for all the children, without rewriting it.

    Ultimately, the judge ruled that the parents had a moral obligation to their daughters and their will was unfair as it did not meet that obligation. To remedy the situation, the judge varied the will to give the daughters each 15% (up from 1.7%) and the two sons each 20% (down from 46%) of the parents’ estate. This is approximately $1.35 million to the daughters and $1.8 million to the sons. Although the division isn’t equal, this ruling offers a more equitable distribution than the parents’ original plan in their wills. The ruling persevered the parents’ traditional wishes for their estate to the extent possible without falling into discrimination that is not compatible with modern Canadian social values.

    This case helps to exemplify the purpose of the Wills, Estates and Succession Act and how it can help those who have been disinherited unfairly. This case shows how an unfair will can be revised to reflect the will writer’s primary intentions, while also doing right by the succeeding spouse or children.

    If you or someone you care about has been left out of an estate unfairly, the lawyers at League and Williams are here to help, please call 250-888-0002 or email us at info@leaguelaw.com for a free consultation.

  • Disinheritance and Deception – Disputed Estate Goes to the Supreme Court of Canada

    Disinheritance and Deception – Disputed Estate Goes to the Supreme Court of Canada

    Bargaining for Elder Care – the Promise Made

    There were three adult children, Gloria, Max and Nate – each of whom had been promised a third of their parent’s estate including the family home by their father.  As is common, when their father died, everything was left to their mother.  As time went on, the mother was eventually unable to care for herself at home.  Wanting to keep their mother in her home, Gloria, unwilling or unable to care for their mother herself, made a deal with her brother, Max: if he moved back to Victoria, BC, Canada from England to care for their aging mother until her death, that she would agree to sell to him her expected one third interest in the family home, a home that had been built by their father some 60 years earlier.  The home having special meaning to Max, Max packed up his life and made the move, caring for their mother until her death three years later in 2010.

    Deception, Death & Disinheritance – a Recipe for an Estate Dispute

    Gloria held sway with their mother – so much so, that upon their mother’s death, Gloria revealed that their mother had transferred all of her assets to a trust of which Gloria was the only beneficiary.  Gloria’s actions resulted in the entire disinheritance of both brothers, betrayed by a sister who used her influence over their mother to exclude them from the estate. To make matters worse, Gloria then proceeded to refuse to sell to Max the interest in the family home, breaking the pledge she had made to him.

    Dismayed, Max sought to right the wrong that had been done and disputed the estate – suing not only for his fair share of the estate from the disinheritance but, also to hold his sister to the promise she had made to sell Max a one third of interest in the family home.

    Uncertain Certainties and the Law – Promises and Probabilities

    The disinheritance went to trial and the trial judge found Max’s sister had exerted undue influence over her mother in causing the mother to put all of her assets in her daughter’s name.  As a result, the judge ordered all of the assets back into the mother’s estate, and divided the estate equally into thirds.  Importantly, the trial judge also found that Max’s sister had to make good on her promise to sell her one-third interest to Max, because although the sister did not own the interest in the home when she made the promise, it was reasonable for Max to expect that Gloria would after their mother died. 

    In holding Max’s sister to her promise, the trial judge found the key components of “proprietary estoppel” were met:  there was a promise by the sister, that Max reasonably relied on, that was unfairly broken and caused Max detriment.  However, Max’s sister appealed to the BC Court of Appeal, and two of three judges found that Max’s sister could not be held to her promise because she didn’t own the one-third interest in the home at the time she made the promise, and it was not “certain” that she ever would.

    Is it reasonable to require certainty when making a promise about something that a person does not own at the time the promise is made (but is likely, but not certain, to own in the future)?  Are contingent promises valid – or are those who rely on them without recourse if the promise maker reneged?  These questions merited an appeal to the Supreme Court of Canada, which heard the case on May 26, 2017.  

    The Argument Before the Supreme Court of Canada

    League and Williams’, Darren Williams appeared before the 9 judges of the Supreme Court of Canada to argue the case on Max’s behalf.  Mr. Williams argued that the BC Court of Appeal was wrong in insisting there be absolute certainty in the sister’s ability to make good on the promise.  What followed was a lively debate with the 9 justices on the level of probability needed in order for a person to be held to the promise that was made.  Does the outcome of the promise have to be as certain as death or taxes?  Or is reasonable probability enough?  

    The decision of the Supreme Court of Canada is expected in the fall of 2017.  Those who are making contingent promises and those who are relying on those same promises should look forward to the clarity this case may bring to this area of law in Canada.  This blog will be updated once the decision is issued.   

    Have an estate dispute?  The lawyers at League and Williams are here to help and will fight for your fair share of an estate.  We serve clients across British Columbia, offer free consultations and do not get paid until you do.  We may be contacted at 250-888-0002 or via email at info@leaguelaw.com. If you have suffered an unfair disinheritance, do not delay, it could cost you your fair share of an estate. 

  • Fixing a Broken Will – What can the court do?

    Fixing a Broken Will – What can the court do?

    Hello and welcome to this week’s blog on the law.  In past video blogs, we’ve talked about reasons why people challenge wills.  Undue influence and unfairness are two common reasons.  A third reason is that the will does not meet the formal drafting requirements for a valid will – that is the will itself is “broken” because it does not meet the three basic requirements in order to be valid.  This blog will discuss what the basic requirements for a will in British Columbia are and what the court can do to fix a broken will.

    What are the 3 basic requirements for a valid will in British Columbia?

    There are 3 requirements for a valid will in British Columbia, these are:

    1.  First, the will must be in writing;
    2.  Second, the will must be signed at the end, and;
    3.  Third, it must be properly witnessed.

    Prior to fairly recent changes to BC law in 2014, if a will was missing one of these key elements, for example, if it was not witnessed, the courts would invalidate the will.  While the courts could invalidate a broken will, they were not, prior to 2014, able to fix a broken will.

    If a British Columbia will fails to meet the basic requirements, can the courts fix it?

    In 2014, the legal framework surrounding wills and estates in British Columbia changed with the introduction of new legislation called the Wills, Estates and Succession Act.  One of the biggest developments contained in the new law was something called a curative provision.  This means that in cases where a will does not fully satisfy the formal requirements, the courts can now cure, or fix, the deficiencies in the broken will and pronounce a will valid.

    What must be done in order for a BC court to fix a broken will?

    In order to be able to invoke these powers to fix a broken will, the court must be satisfied of two things:

    1. First, the court must be satisfied that the document is authentic. Essentially this means the court asks, was this document prepared by the deceased? and;
    2. Second, and most importantly, the court must ask, does this document truly represent the intentions of the deceased.  That is, is it a fixed and final expression of the deceased’s wishes?  Or in other words, did the person making the document mean for it to be their final will?

    The courts, in determining whether a document represents a valid will, will look to a wide variety of evidence.  This evidence includes: the presence of the deceased’s handwriting; whether the will had witness signatures; whether the document revoked previous wills; did the testator include plans for funeral arrangements; and did the testator include specific gifts.

    Want your last wishes respected? Avoid creating a broken will in the first place.

    Since the new laws have come into force, people have creatively tried to prove a number of documents as being valid wills.  These range from handwritten notes on scrap paper, to journal entries, to letters.  Although the courts are given broad power, the further a document departs from the formal requirements of a will, the harder it is for the courts to find it embodies the deceased’s testamentary intention.  In the end, it is always best to seek the advice of a lawyer in finalizing your will.  Failing to do so can mean your final wishes will be ignored.

    I hope you have learned something about the law from this blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.

    Matthew Melnyk is an associate lawyer with League and Williams.  Matthew practices in the areas of injury law, estate disputes and marine law.  He is a competent lawyer who practices as part of the League and Williams team and may be reached at 250-888-0002 or via email at info@leaguelaw.com.  League and Williams offers free consultations and has built their practice on client satisfaction. 

  • Disinheritance: That’s It – You’re Out of the Will!

    Disinheritance: That’s It – You’re Out of the Will!

     

    Reasons for disinheritance must be both true and rational

    This week we’ll discuss some of the reasons, some understandable, some much less so, and completely bizarre, that have driven parents to disinherit their children.  As we have touched on in other blogs, the law in BC requires that a will discharge the will-maker’s moral duty to make adequate provision for their spouse and their children.  This law is the most generous in Canada in this regard.  To overcome this moral duty and disinherit a spouse or a child in a way that the courts won’t interfere with, the will maker needs to have both valid and rational reasons.  This means the reasons have to be both true and logically connected to the disinheritance.

    Untrue reasons may be challenged

    Untrue reasons stated for disinheritance tend to have common themes that return again and again, such as imagined drug addictions or criminal histories, a parent’s mistaken belief that a child is very wealthy, or even conspiracies to steal the will-maker’s possessions.  Less common however, are the cases where the will-maker said their estate needed to be left to other needy relatives who turned out to simply not exist, or where the testator believed people had conspired to pump poison gas into his apartment.

    Irrational reasons may be challenged

    Beyond being true or not, the reason also has to be rational.  The mother whose son grew marijuana on her property leading to her arrest and conviction for drug possession was found to have had rational reasons for leaving him out of her estate.  On the other hand, the mother who disinherited her son because he failed to fix the fridge in her apartment was not held to have rational reasons for excluding her son out of the estate.

    Disinheritance for reasons inconsistent with Canadian social values may be challenged

    There are also reasons for disinheriting a family member that may be both true and have a rational connection to disinheritance that have been found to be simply inconsistent with modern Canadian social values.  The courts, for example, will clearly not uphold the wills of parents who disinherit their children for their sexual orientation.  There are also some cultural norms that will not be upheld either, such as the custom of providing only for sons to the exclusion of daughters.  Lastly, a child who marries someone of a different race, or religion, or nationality can still expect to share in their parent’s estate.

    We know that the issue of testamentary freedom always gets our viewers thinking, so I’d invite you to share your thoughts or your own stories of strange disinheritance with us.

    I hope you have learned something about estate law in BC from this blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.

    Andrew Broadley is an associate lawyer at League and Williams who practices in the areas of estate litigation and personal injury.  If you have an estate dispute you would like to discuss, we offer free consultations and may be contacted through our offices at 250-888-0002 or via email at info@leaguelaw.com.