Disinheriting Adult Independent Children

The Court will look at whether or not the Will adequately provides for the adult child’s proper maintenance and support

Under WESA, a natural or adopted child has an opportunity to dispute a Will. A step-child that was not legally adopted does not have standing to dispute the Will under the traditional will variation case law.

When a lawsuit is commenced, the Court will look at whether or not the Will adequately provides for the adult child’s proper maintenance and support. It is unnecessary for the child to show financial need but rather, the Court looks at the moral obligation of the parent to provide for the child. It is important to note that “proper maintenance and support” of a child is not limited to the bare necessities of life.

In the landmark legal decision of Tataryn v. Tataryn Estate (1994) 46 BCAC 255, the Supreme Court of Canada identified two competing interests:

1. The statutory objective of ensuring that adequate, just and equitable provisions are made for the surviving children in the Will; and
2. The testator’s testamentary freedom.

The testator’s testamentary freedom is most often subordinate to the statutory objective of ensuring that adequate, just and equitable provisions are made for the surviving adult children in the Will. The Court applies an objective test meaning the Court considers what others in society would do based on societal, legal and moral norms.

Case law has further developed the test of “adequate, just, and equitable” provision. In the British Columbia Supreme Court cases of Dunsdon v Dunsdon 2012 BCSC 1274 and McBride v. Voth 2010 BCSC 443, the Court set out a list of potential factors to consider when assessing a testator’s moral duty to independent children:

1. Estrangement where the testator played a significant role in the breakdown of the relationship is not held against the claimant;
2. Estrangement at the doing of the claimant where the testator was trying to maintain a relationship reduces the moral obligation;
3. Childhood neglect or abandonment by the testator of the claimant increases the moral obligation;
4. Unequal treatment of the children throughout the life of the testator increases the moral obligation to the ignored child;
5. Size of the estate (the bigger the estate the more likely the variation);
6. Contributions by the claimant to the testator’s estate and lifestyle;
7. Did the claimant have a reasonable expectation of receiving an inheritance;
8. Standard of living of the testator and claimant;
9. Gifts and benefits made by the testator outside the will;
10. Testator’s reasons for disinheriting;
11. Financial need and other personal circumstances, including disability, of the claimant;
12. Misconduct or poor character of the claimant; and
13. Competing claimants and other beneficiaries.

In Ryan v Delahaye Estate 2003 BCSC 1081, the Court noted that in the absence of express reasons for an unequal distribution, contemporary standards create a reasonable expectation of children sharing equally in a parent’s estate.

If there is a legal obligation to provide for another beneficiary, such as to provide for a disabled dependent child or for a spouse, that claim takes precedent over the moral obligation owing to adult children. However, if there are sufficient assets in the estate after these legal obligations have been satisfied, the moral obligations to the adult children also succeed.

An important point to remember is that if the testator has provided a rationale behind the disinheritance under the Will and the rationale is a reasonable one supported by evidence, the Courts may well accept the explanation and uphold the disinheritance on the basis of testamentary autonomy. One example is where a child had received a large amount of the family estate outside the Will through a level of manipulation of the testator. Other examples of valid reasons for disinheriting an adult child are set out in the British Columbia Supreme Court decision of McBride v. Voth 2010 BCSC 443:

1. Misconduct or poor character on the part of the child;
2. Estrangement, especially if the deceased played little role in the breakdown of the relationship; and
3. Lifetime gifts or benefits outside the Will.

In summary, in most situations, the child that has been disinherited has a good chance of varying a Will unless reasonable circumstances exist for excluding the child and that reason is supported on the evidence.