Can a disinherited child contest your will?
Topics covered:
- Explaining the legal framework around the right of a child to challenge a will that disinherits them.
Family dynamics are not always sunshine and rainbows. Relationships can become strained. For example, an adult child’s hurtful behaviour could lead a parent to decide not to include them in their will.
A number of readers have asked me whether a parent can disinherit a child. And whether a disinherited child can challenge the parent’s will.
The short answers are yes and yes.
The law is complex. I will do my best to outline it in a way that will make sense to those without a law degree.
The starting point is the Wills, Estates and Succession Act, a piece of British Columbia legislation.
Section 60 gives the court the power to vary a will “…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…”
Could you imagine legal language that’s any more loosey goosey?
The section begs the questions of: What should the court’s opinion be based on? What’s “adequate”? What’s “proper”?
To advise what that provision really means in practical terms, lawyers turn to the decisions of judges who have applied section 60 to the facts of lawsuits where disinherited children have challenged their parents’ will.
One of the most important aspects of our justice system is an archive of legal decisions. Judges don’t just declare the winners and losers of lawsuits. They write a detailed written description setting out the reasons for their judgments.
The written description includes a review of the witnesses and other evidence, the judge’s findings of fact based on that evidence, the laws and legal principles applicable to those facts and a clear logical analysis about how they came up with their ultimate judgment.
Those decisions are important because each decision is instructive to future judges who hear similar cases. This creates consistency in how loosey goosey clauses in legislation are applied.
The outcomes of will variation cases are not willy nilly, based on the particular judge’s own subjective opinion. The “opinion” referred to in section 60 is an objective one, requiring the judge to consider, and typically follow, decisions made by other judges.
You can access extensive archives of legal decisions online through this link here (https://www.bccourts.ca/search_judgments.aspx).
To find legal decisions about will variation cases, try typing this into the Key Words box: “WESA w/10 60”. That will find legal decisions that contain the acronym “WESA” (referring to the Wills, Estates and Succession Act), within ten words of the number 60, which is the section of the act I referred to earlier.
I am sharing how to access these resources to help you understand what might otherwise appear to be a mysterious and inconsistent legal system.
Please don’t substitute what you might read of these resources for legal advice!
Lawyers have extensive training and experience in reading and understanding legal decisions. Lawyers also have the expertise to apply the results of that research to your particular circumstances and to advise you about how best to achieve your goals.
The most significant legal decision about section 60 is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. If you have trouble finding it online let me know and I can send it to you.
This decision is of the Supreme Court of Canada (“SCC”), the highest court of this country.
Legal decisions of British Columbia judges can be appealed to the British Columbia Court of Appeal. From there, with permission of the highest court, they can be appealed to the SCC. Those top decisions are binding on all judges in Canada.
The Court in Tataryn gave meaning to how the court will determine whether or not a testator has made “adequate” provision for their children.
The Court considers obligations that the law would have imposed on the testator to their children while they were alive, referred to as their legal obligations.
The Court will also consider “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards”, referred to as their moral obligations.
The Court noted: “In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed.”
The Court went on: “Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve.”
I’ve used up all my 600-800 words of column space providing the legal framework for this very interesting area of the law. Next week, I will give example scenarios of how the law has been applied.
I suspect that this column topic might be of sufficient interest to extend for a number of weeks. Please e-mail me with your feedback about his subject matter and any particular questions you might have about it.
