Where a loved one is cut out of the Will, often the Court will vary a Will unless there is misconduct, poor character, estrangement, etc.
If a testator is attempting to cut a loved one out of the Will, the best way to do so is to provide a detailed written note as to why the particular individual is not a beneficiary under the Will. Alternatively, the reason can be stated in the Will itself.
Where there is a note or dying declaration of the testator explaining the rationale for the Will, it is up to the family member to show that the reasons for the exclusion from the Will are false or unwarranted. Alternatively, the reasons for the disinheritance must be morally unacceptable in today’s society.
In Bell v. Roy Estate (1993) 75 BCLR (2d) 213, the Courts dismissed a daughter’s claim on the basis that the testator disinherited her because the daughter contacted her only sporadically over the years and had provided no comfort or support. The same approach occurred in Kelly v Baker 15 ETR (2d) 219 where the disinherited son had chosen to abandon the family and live a morally unacceptable life.
If there is some sort of racial or sexual overtone to the disinheritance, the Court will not accept the testator’s rational for the disinheritance. For example, in certain cultures, the sons are favored over the daughters. The British Columbia Courts do not allow Wills that favor the sons over the daughters (Prakash vs. Singh 2006 BCSC 154). Similarly, if the Will favors a “straight” child over one that is homosexual, the Court will not accept that (Peden v. Peden 2006 BCSC 1713).
Other factors to consider are found in McBride v. Voth 2010 BCSC 443:
- Misconduct or poor character;
- Estrangement especially if the deceased played little role in the breakdown of the relationship;
- Lifetime gifts or benefits outside the Will;
- Contributions by the Claimant to the accumulation of the assets of the deceased;
- Bona fide expectation by the Claimant to receive the benefit on death;
- Childhood neglect by the deceased; and
- Unequal treatment of the children throughout the life of the deceased.
In summary, where a loved one is cut out of the Will, often the Court will vary a Will unless there is misconduct, poor character, estrangement, etc.
What are Grounds for Disinheritance?
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