Will the court always vary a will to leave something for a disinherited child?
Topics covered:
- Explaining that it’s only the law from an upper court decision that must be followed by a lower court
- Providing an example case where the court did not vary a will that disinherited a child
Scott posed this question to me after reading last week’s column: “My question is regarding the disposition of estates to adult children. Is a court bound to follow the precedent here and distribute a portion to disinherited children or is there discretion?”
Scott had found and read the Supreme Court of Canada decision of Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, which I had referred to last week as the most significant legal decision about the court’s power to vary a will.
We gave the courts that power, by the way. We passed a piece of legislation called the Wills, Estates and Succession Act. Section 60 of that Act 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, 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.”
Mr. Alex Tataryn was married with two sons. His will greatly favoured one son, Edward and disinherited his other, John. It was also underwhelming towards his wife, Mary. He included an explanation in his will that referred to difficult family dynamics. In the end result, the Court varied the will increasing Mary’s take and dividing what would be left in the estate after Mary’s death 1/3 to John and 2/3 to Edward.
Yes, the Tataryn case is the most significant legal decision about this area of the law. And yes, all lower courts must follow the law established by that decision. But no, a court is not bound to always distribute a portion of an estate to a disinherited child.
The outcome of a lawsuit depends on application of the law to the particular facts of the case. It is only the law set out by upper court decisions that must be followed by lower courts. The actual outcomes will match only if the facts are identical.
When it comes to cases where adult children have been disinherited by their parents, the facts as you might expect are all over the map!
One case where a court declined to vary a will that disinherited an adult child is Hall v. Hall, 2011 BCCA 354, where the Court upheld mother Jean’s disinheritance of her son, Tony.
You can read the details of this family’s unfortunate dynamics by accessing the actual Court decision here (https://www.bccourts.ca/jdb-txt/CA/11/03/2011BCCA0354.htm).
If you want more, you can read a companion decision arising from challenges by Tony and his step-mother to Tony’s father’s will, Hall v. Korejwo, 2011 BCCA 355, accessible here (https://www.bccourts.ca/jdb-txt/CA/11/03/2011BCCA0355.htm).
Jean explained in her will why she disinherited her son. There were three reasons given.
One was that they had been estranged: “I have left nothing to my other son, Roy Anthony Hall, who has for a great number of years been estranged to me. For reasons that I do not understand, my son has not wanted anything to do with myself or my family. It has been many years since I have seen him and on the last occasion that I did see him he did not wish to talk to me. My son does not come and visit me nor telephone me nor communicate with me.”
Another reason was that she had no concern about Tony’s ability to look after himself financially.
Her third reason was a very close relationship that she had with her other son, Paul, and his family.
Tony argued at the trial that his mother was partly responsible for their estrangement. Indeed, a testator’s role in their estrangement from a child is a key factor that judges consider. As they say: “It takes two to tango”. But given the particular facts in this case, the court rejected Tony’s argument.
Tony also pointed to a significant decline in his health that occurred after his mother’s death, leaving him disabled from working. Referring to the law that considerations for varying a will are made as of the date of death, this was found by the Court to be irrelevant.
The reasons this mother gave for disinheriting her son were found to be valid and the will was not varied.
The estrangement aspect of disinheriting an adult child is the most “interesting”, because it’s most often (but not always) the primary motivator and it involves a review of dysfunctional family dynamics. I intend on drilling down about how the courts deal with that aspect next week.
There are additional factors that a court will consider when deciding whether a parent has adequately provided for an adult child, which I will cover in a future column.
Actually, this is a topic that just keeps on giving – I expect that I’ll be stuck on it for the next number of weeks! If there are any particular aspects you would like me to discuss, please e-mail me.
