Debunked “common knowledge” about disinheriting
- Debunking the myth that leaving a child a small bequest prevents the child from challenging your will
Is it truly “common knowledge” that you can disinherit an estranged child if you leave a small bequest, for example $2,000.00, in your will?
A friend of mine recently shared that “common knowledge” with me.
Spoiler alert: it’s complete bunk.
How very sad that the relationship between a parent and their child could degrade to the point that there’s really no relationship at all.
The point that the parent, in their final act in this world, would want to exclude that child from receiving anything from their estate.
It happens more often than you might expect.
An inheritance is a gift.
We spend the better part of our lives working to build wealth, often sacrificing time off and life’s pleasures.
The most difficult years might have been while raising the financial black holes of our children.
When it comes to making decisions about the biggest gifts we’ll ever make, it would feel repugnant that anything of significance would go to a child who:
- has chosen not to maintain a relationship with us…or hasn’t bothered, or
- has treated us horribly to the point that we have chosen to distance ourselves from the child.
Should we not have the complete and unfettered ability to choose not to leave an inheritance to such a child?
Perhaps we should. But the law in British Columbia allows a disinherited child to challenge a parent’s will.
A child’s right to challenge a parent’s will comes from section 60 of B.C.’s Wills, Estates and Succession Act, which says:
“…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 … 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.”
By enacting that legislation, our political leaders have saddled judges with the task of passing judgment on parents’ estate distribution decisions when it comes to their children.
I’m ignoring the spousal side of things on purpose because that’s a whole other topic.
Broadly stated in the very recent case of Cusack v. Cusack, 2026 BCSC 461, the court must consider whether a parent acted in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstances.
The issue isn’t whether the parent left the child anything at all. The issue is whether the parent met society’s reasonable expectations.
The courts have established a set of factors to guide them in that consideration, so that their decisions can be as consistent and objective as this difficult subject matter allows.
None of the factors is: “Did the parent leave a small bit of money to the estranged child?”.
For an in-depth review of the issue or disinheriting a child, including a discussion of the factors considered by the courts, have a look at my three-column series on the subject published in August, 2024.
To get the law “from the horse’s mouth”, the Cusack decision is incredibly well written and also available online.
This is a complex area of the law.
Don’t rely on non-lawyers telling you what they think is “common knowledge”.
Consult with a lawyer to learn how you can:
- minimize the likelihood that an expensive lawsuit will eat up a portion of your estate, and
- maximize the likelihood that your wishes will not be successfully overturned.
A lawyer can also explain how you can completely sidestep your child’s ability to force a gift out of your estate.
Please note that I’m not currently taking on new estate planning clients. But I can refer you to excellent lawyers who are.
