Abandoned Infant Wins Wills Variation Action, Not Estranged From Parent

Abandoned children are often disinherited later in life under the pretence of  being estranged from the parent  who typically deserted the child  and remained distant thereafter. The child under these circumstances is owed a strong moral obligation to be provided for by the deceased’s estate, or failing same the abandoned child has a strong Wills Variation action in British Columbia.

McMain v Leblanc 2013 BCSC 901  involved a situation where the deceased separated from his wife and two-year-old son  approximately 30 years before  his death .

The testator moved to Canada from England, and thereafter paid no child support whatsoever and had almost no contact with his son for the remainder of his life , other than an unannounced appearances for a brief time in 1975 and a telephone call in 1989.

The testator left a will stating that he did not provide for his only son as “he had had limited contact with the son and not seen him in over 20 years .”

The son was ultimately awarded $180,000 out of an estate of $330,000, that had been left solely to the niece of the deceased and the reasoning of the judgment was as follows:

“In my view, in all the circumstance of this case, the plaintiff has a strong moral claim to a share of the testator’s estate. This claim is undiminished by the plaintiff’s decision, after the failed 1995 Vancouver reunion, to abandon his attempts to get closer to his father. The plaintiff had come to the conclusion that his father did not love him and wanted nothing to do with him. I do not blame him. The testator did almost nothing to lead him to think otherwise. It was the only rational conclusion for him to have drawn from a lifetime of experience.

[89]         Although every case must be decided on its peculiar facts, and the facts at bar differ from those in Gray v. Nantel, supra, nevertheless I would respectfully adopt the spirit of the following observation of Donald J.A. as follows at para. 17 of the judgment:

[17]      I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claim to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.

[90]         Here, too, the testator had one last opportunity to behave after the manner of a judicious parent and recognize his moral obligation to his son by means of his will. He failed in this.

[91]         In my estimation, as in Gray, (Gray v Nantel 2002 BCCA 94) this case involves the testator’s unilateral withdrawal from the parent child relationship. I appreciate that there was occasional contact between the plaintiff and testator, but my overall finding is that the plaintiff wanted a relationship, and the testator, for whatever reason, could not be bothered.

[92]         In my judgment, the testator cannot resort to his indifference to his parental responsibilities in life as a justification for avoiding his moral obligations to his only son in death.

[93]         Yet this is precisely what the testator attempted to do in para. 5 of the will. In my view the statement made in this paragraph gives neither valid nor rational grounds for disinheriting the plaintiff. The words set out in para. 5 are superficially true, but they portray only a fraction of the whole truth.

[94]         Section 5 of the Act enjoins me, in evaluating the weight to be given to para. 5 of the will, to have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of what was said. I am not limited to the testator’s cryptic and incomplete narrative of his relationship with his son. I must look at the whole picture.

[95]         Having done so, I am strongly persuaded that this is a case in which the testator more or less abandoned his son from an early age and had a strong moral obligation to attempt to make up for his omissions in his will.

[96]         Accordingly, the will be varied to make adequate, just and equitable provision for the plaintiff, while interfering as little as possible with the testator’s clearly expressed autonomy and intentions. In my view, the plaintiff’s position that the entire net estate should be transferred to him is over-reaching, would entirely obviate testamentary autonomy, and is not a fit remedy to the circumstances.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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