Disinherited Due to Family Estrangement

Disinherited Due to Family Estrangement

In cases of a parent disinheriting an independent, adult child due to estrangement, the court will consider the role of the testator and his or her moral duty to that child. Factors such as the size of the estate, the testator’s reasons for disinheriting, and the relationship between the testator and the child, are only a few of these considerations. As affirmed in JR v JDM, 2016 BCSC 2265, if it is found that the estrangement is primarily the fault of the testator, it will likely not negate a testator’s moral duty to an adult child.

Not all families are the same. While some families are close-nit and full of love for one another, others may be dysfunctional and family members may deliberately choose to cut off ties with their relatives for the benefit of their own physical and mental health. Children from dysfunctional families take such drastic action for many reasons, such as emotional and/or physical abuse, substance abuse, mental illness, and manipulation and controlling behaviour. As a result, the parent may take steps to disinherit the estranged adult child. This can cause confusion regarding the child’s entitlement to that parent’s estate once the parent has passed away.

JR v JDM, 2016 BCSC 2265

The Will of W.F.M left W.F.M’s entire estate to his surviving second-wife, should she survive him for 30 days. In the event she did not, which did not happen in these circumstances, the Will directed that the estate be divided equally between W.F.M’s son, and each of his second-wife’s two children. The plaintiff, J.R. was the daughter of her father’s first marriage and had been estranged from her father for twenty years. Despite being urged by two professional advisors, W.F.M. failed to make any statement in writing regarding his reasons for disinheriting his daughter.

W.F.M. was described as being very controlling, domineering and short-tempered. He would belittle and berate his daughter,

neglect her needs and never express any affection towards her. During the years she resided with him, she was subjected to ongoing sexual and emotional abuse. She left his home at the age of 13 which heavily impacted her future because she did not receive any financial support towards her education or general welfare. Accordingly, J.R. applied to have the Will varied such that she receives a bequest because her father did not act as a judicious parent in disinheriting her. W.F.M.’s second wife, and sole beneficiary under the Will, argued that any moral duty W.F.M.may have owed to his daughter was negated by her twenty year estrangement, which she claims was created and perpetuated by J.R.

Statutory Objective

The court reviewed the statutory objectives of the Wills Variation Act to be the adequate, just, and equitable provision for a testator’s spouse and children, and testamentary autonomy. However, “testamentary freedom must yield to the extent required to achieve adequate, just, and equitable provision for the applicant spouse and/or children. In that sense and to that degree only, testamentary autonomy will be curtailed by the application of the WVA” (at para 84).

A Testator’s Moral Duty

Whether a testator has acted as a judicious parent or spouse is measured objectively and assessed in light of current societal legal norms and moral norms. Legal norms are the obligations that the law would impose upon the testator during his or her life if the question of provision for a claimant’s spouse of child were to arise. A testator’s moral duties are grounded in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards (at para 85).

In reference to the moral claim of independent adult children, the court considered Tataryn v Tataryn Estate, [1994] 2 SCR 807 (Tataryn). In that case, the court found that while they “may be more tenuous” than that of a spouse or dependent child, some provision for adult independent children should be made if the size of the estate permits and in the absence of circumstances that would negate the existence of such an obligation (at para 90).

The court also consulted Dunson v Dunson, 2012 BCSC 1274, which summarized the considerations that inform the existence and strength of a testator’s moral duty to independent children:

[134] In the post-Tataryn era, the following considerations have been accepted as informing the existence and strength of a testator’s moral duty to independent children:

● relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;

● size of the estate;
● contributions by the claimant;
● reasonably held expectations of the claimant;
● standard of living of the testator and claimant;
● gifts and benefits made by the testator outside the will;
● testator’s reasons for disinheriting;
● financial need and other personal circumstances, including disability, of the claimant;

● misconduct or poor character of the claimant;
● competing claimants and other beneficiaries.

Application and Decision

The main issue in this case was to determine the nature and extent of the moral obligation W.F.M. may have owed his daughter, J.R., and whether it had been negated. In applying the Tataryn principles, the court found that the size of the estate was such that some provision should be made for J.R., unless there were circumstances that would negate such an obligation. At paragraph 99, the court established that “if the estrangement is largely the fault of the testator, it will likely not negate a testator’s moral duty to an adult child.” In making this assessment, it was determined that J.R.’s lack of effort to re-establish contact with her father was a reasonable reaction to his mistreatment of her. Therefore, the onus for repairing the relationship and seeking any form of reconciliation with his daughter rested squarely with W.F.M. In fact, his blameworthy conduct enhanced his moral duty to her.

The court conclude that W.F.M failed to discharge his moral obligations to J.R. and failed to make adequate provision for her in his Will. His disinheritance of her fell outside the range of options a contemporary judicious parent would have considered appropriate in the circumstances.

Estate Litigation Lawyer Angela Price-Stephens

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