Disinheritance for Bad Behaviour – Part 2
The courts may be inclined to disallow the disinheritance of an adult child unless the allegations made by the deceased parent are valid and rationally connected with the decision to exclude the child.
The leading case is the Court of Appeal decision of Kelly v Baker 15 ETR (2d) 219 which clearly sets out the court’s decision making process:
“In deciding a wills variation claim, the task of the court is to decide whether, at the date of the testator’s death, his or her will was consistent with the discharge by a good parent of his or her duties to his or her family. The law does not require that the person expressed by the testator in his or her will, or elsewhere, for disinheriting be justifiable. It is sufficient if there were valid and rational reasons at the time of his or her death – valid in the sense of being based on facts; rational in the sense that there is a logical connection between the reasons, and the active disinheritance..”
In Fuller v Fuller 2008 BCSC 702 the son of the deceased brought a claim to vary his father’s will. The father had effectively disinherited the son stating that he had provided adequate provision for his son through his lifetime by way of gifts to the extent that he owed no further obligation. On hearing all the evidence however, the court found that in fact the gifts made by the father to the son were modest at best, and that the reasons for the disinheritance were not valid and rational. The will was varied to allow the son to receive two thirds of the $90,000 estate.
In Holvenstot v Holvenstot Estate 2012 BCSC 923 the son brought a claim to vary his mother’s will. Ultimately his claim was dismissed and his disinheritance confirmed. However this case is a great example of the details to which the court must go in assessing the evidence in such a claim.
The estate was a significant size. The son claimed his mother had a moral obligation to ‘make adequate provision’ for him in her will. Based on the law alone, this statement is correct – especially where the estate may be large enough to satisfy beneficiaries’ needs. He claimed that no circumstances existed that would negate his mother’s moral obligation to make provision for him. In particular he claimed that he had engaged in no blameworthly (or significantly blameworthy) behaviour that could negate that moral obligation.
The mother however had left a long list of complaints against her son to justify her decision to disinherit him. The evidence included a transcript of previous court proceedings in which she told the court she wanted to move away from her son and for him “no to bug her anymore.”
As the evidence evolved it became apparent that the son had brought legal proceedings to attempt to have his mother declared mentally incompetent. The mother had also had to sue her son in order to prevent him from gaining ownership of two acres of her land and to force him to return items of her property. Her son’s conduct cost the mother a considerable amount of money and caused her much emotional upset.
The Judicious Parent
The court found the mother’s reasons to disinherit her son were rational and logically connected to her decision to disinherit her son. Another way to consider the facts is that a judicious parent, applying contemporary community standards in the circumstances existing at the time of the mother’ death, could reasonably have decided to disinherit her son, for these reasons alone. Being a judicious parent is a parent who acts with good judgment and sense. Acting out of spite, malice, bigotry etc is not going to pass the test.
Valid and Rational
The reasons expressed by the testator need to be valid and rational at the time of their death. Valid in the sense of being based on fact; rational in the sense there is a logical connection between the reasons and the act of disinheritance.
In Hall v. Hall, 2011 BCCA 354, the Court of Appeal stated:
 … To succeed in his challenge to her will, Tony must establish these reasons were false or unwarranted: Bell v. Roy Estate …. In considering that proposition, it is not necessary to find the reasons were justifiable. It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance: Kelly v. Baker
[44) Having regard to this re-statement of the law in Hall v. Hall, I think it is questionable whether the reasoning in the earlier decisions of this court which I have discussed, should be followed. If I am wrong, then I would favour using the “judicious parent” test in deciding the issue of whether a “true” reason of a testator for disinheriting a spouse or child, is also rationally connected to the decision to disinherit. I would apply a test similar to that stated by Mr. Justice Sewell in paragraph 70 of LeVierge v. Whieldon (and not as stated by him in paragraph 61). That is, in deciding whether a testator’s reason is rationally connected to the decision to disinherit, it would be enough that a judicious parent could have made that decision, based on the reasons that existed. There should be no requirement that a judicious parent would have made the decision to disinherit in the same circumstances. In my view, if it were otherwise, the court would be deciding, in effect, whether the reasons were objectively “justifiable.” [emphasis added]
Not Valid and Rational
There are cases which have illustrated reasons given by the testator as being not valid and rational, and so obviously so one may wonder how a will-maker could have hoped to rely upon them. These purported reasons for disinheritence, ignored by the court, include the claimant “being gay”, “being an incompetent weakling”,” has been unsuccessful in multiple business ventures”. There are many other examples and each may illustrate the will makers’ values and personal assessment of the claimant. Some reasons are simply not acceptable to today’s social values and will therefore come under the decision of not being a valid and rational reason to disinherit a child (or spouse).
The reader will appreciate that there is a good deal of discretion with the court to consider all the circumstances and in weighing the evidence to determine whether the conduct of the claimant (the disinherited party) is a valid and rational reason for excluding the claimant. If you are considering pursuing a claim to vary a will, or if you are the executor who has the obligation to defend the will, it is important to obtain legal advice as soon as possible. Defending the will may also entail entering into a settlement with a claimant, where this is the reasonable course of action to defend the estate’s assets, rather than use up assets defending a claim likely to succeed at trial.