Western Canada Business Litigation Blog

The Difficult Problem of Disinheriting a Child

Posted in Estate Litigation
Print Comment

Many parents, late in life, come to realize that one or more of their children are not people they like or respect.  There are usually a myriad of reasons for this, the cause of which depends on who you ask.  But for the parent, their disappointment often leads them to consider making no provision for that child in their will.  To disinherit a child, often in favour of others, is emotionally trying and can be legally difficult to do.  Generally, contemporary social standards create a reasonable expectation, enforceable through the courts, that children will share equally in a parent’s estate.  There have to be very good reasons for a disinheritance.  Further, to be effective, those reasons need to be recorded somewhere and will likely need to withstand subsequent legal scrutiny by the courts.

The difficulty is that once the parent is dead, a disinherit child can challenge the will under the Wills Variation Act and seek a share of the estate the parent intended to deny them.  Section 2 of that legislation allows the courts, in appropriate circumstances, to vary a will where it does not “make adequate provision for the proper maintenance and support of the testator’s . . . children”.  In such cases, the court may vary the will and “order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the . . . children”.  A parent’s obligation to their child can be a legal or a moral obligation.  Only where there are circumstances that negate the existence of these obligations will the court decline to make some provision from the parent’s estate for the disinherited child. 

The question the court will wrestle with is whether there is sufficient reason for the disinheritance.  This is a factual inquiry and depends on the circumstances of each case.  However, one of the main considerations are the reasons given by the parent for the disinheritance, either as expressed in the will or elsewhere.  The reasons for disinheriting someone must be valid and rational at the time of the parent’s death.  Put another way, the reasons must be based in fact and there must be a logical connection between the reasons given and the act of disinheritance.  For example disappointment or disapproval of a child’s sexual orientation is not a justifiable reason to disinherit them.

An example of reasons sufficient to justify a disinheritance were recently found in a B.C. case.  The 63 year old son had been effectively disinherited by his mother.  The estate was left to his three sisters.  He sought to have the will varied.  The will had been made three years before the mother’s death.  While two earlier wills had divided the estate evenly, the final will gifted only $0.01 to the son because he had caused “untold unhappiness and expense” to his mother.  In addition to this note in the will, the mother left a lengthy, handwritten set of reasons justifying her conduct.

The justifiable reasons accepted by the court included that, in the last six years of her life and in the face of significant evidence to the contrary, the son sought to have his mother declared incompetent and to take control of her affairs.  He had abused a power of attorney by trying to sell her property to himself.  He tried unsuccessfully to enforce this contract in the courts.  He commenced several other court actions against his mother and sisters over her custody and care.  Earlier in his life, the son had grown marijuana in his mother’s house against her will.  As a result, they were both convicted for possession and the mother had been placed on probation. 

In considering whether the son was entitled to a greater share of his mother’s estate, the court held that he bore the burden of proof.  To succeed, he needed to establish that the reasons given by his mother for the disinheritance were false, were not rational or were not logically connected to the act of disinheritance.  He succeeded in disproving many of the claims but not all.  The reasons that remained were sufficient, in the court’s view, to justify the disinheritance. 

Predominant among those was the fact that the son had been involved in litigation with his mother that had “cost the mother a considerable amount of money and caused her much emotional upset.”  This reason was “rationally and logically connected to the mother’s decision to disinherit her son.”  In the court’s view, based on the community standards at the time of the mother’s death (in 2000), this was sufficient reason alone to uphold the disinheritance.

There were, not surprisingly, a myriad of other reasons given by the mother to disinherit her son, most of which the court found were not true.  They included allegations the son had “robbed her blind”, had tried to get his sisters “hooked on drugs”, had failed to look after her financial affairs, had mistreated her while she lived with him, he was “money mad” and cruel to his dog.  This list alone gives some indication of the dysfunction within this family and of the contested and costly nature of the subsequent lawsuits.  Most people will want to avoid this type of litigation for the family members they leave behind.

If you are considering disinheriting one or more of your children, you should probably discuss that intention with an estate lawyer.  At a minimum, it is wise to set out in writing your reasons.  In doing so, you need to think carefully about the completeness and sufficiency of those reasons.  Are the reasons appropriate when considered against current community standards?  Are the reasons rational and logically connected to the disinheritance?  Have events occurred since the will was made that could change or undermine those reasons?  Taking care to adequately consider these questions can be the difference, after your death, between having your wishes carried out and your disinherited child succeeding in a wills variation claim.