Abuse , Neglect and Wills Variation

Wills Variation

In my four decades of experience most wills variation claims  bring with them an individual or even sibling collective  story of abuse, neglect, and  other dysfunctions that result in a disinheritance to top it all off.

It is settled law that the wills variation act ( now s. 60 WESA) was not intended to award damages for abuse, neglect or other bad behavior on the part of the deceased.

 

The evidence of such is admissible in evidence and the judge has a broad discretion to make an appropriate award. A sympathetic judge can increase the award of the wills variation while at the same time stating damages cannot be awarded for bad behavior. ( It is called doing indirectly what one cannot do directly and occurs all the time in legal judgements but that is a secret)

 

The case of Persall v Stromberg 2015 BCSC 1826 reviewed the law re mistreated disinherited adult children.

 

77      Further, even if proven, the law would not support an award to the plaintiffs in their circumstances. If a judge does find a link between a deceased parent’s neglect or mistreatment of a disinherited child and the child’s lack of progress in life and their current diminished financial circumstances, it may make an award if a judicious parent, after objective reflection, would recognize a moral obligation to make amends for neglect or mistreatment through the provisions of their will: Doucette v. Doucette Estate, 2009 BCCA 393 (B.C. C.A.) [Doucette].

78      Generally, where an adult child complains of an unhappy relationship with or neglect of the parent, the summary of the cases between p. 19-50 and 19-51 of the Practice Manual, indicate a range of responses determined by the circumstances in the case. In Gray v. Gray Estate, 2002 BCCA 94 (B.C. C.A.) [Gray], the court found that the will-maker’s neglect of a child may be relevant in determining whether a moral duty is owed to the child.

79      In Brauer v. Hilton, [1979] B.C.J. No. 2128 (B.C. C.A.), the Court of Appeal held that testator’s treatment of the children while in the home was not a proper basis for exercising the discretion granted to the court by the statute.

80      In Gray, the will-maker’s neglect was financial and emotional. The appellant, the disinherited child, testified at para. 11:

I did not go out of my way to establish a relationship with the Deceased because I could not see that he was interested in one. He had shown no interest in me while I was a child. When we finally did establish contact, he tried to take advantage of me financially. I feel the Deceased made no effort to have a relationship with me, to provide for me, to act as a father should act towards his child.

81      Further in Gray at para. 17, Justice Donald stated:

[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.

82      In Doucette at para. 71, Madam Justice Ryan noted:

[71] It is common ground that the Wills Variation Act is not intended as a means of awarding compensation for family abuse, but as recognized in Sawchuk v. MacKenzie Estate, 2000 BCCA 10, 72 B.C.L.R. (3d) 333 at para. 16, where a parent has treated a child unfairly, a judicious parent, after objective reflection, would recognize a moral obligation to make amends for it through the provisions of his or her will. In my view that is all that the trial judge was doing in this case.

83      In Scott-Polson v. Lupkoski Estate, 2013 BCSC 247 (B.C. S.C.), aff’d 2013 BCCA 428 (B.C. C.A.), Justice Sewell of this court concluded that a child’s allegation of sexual and verbal abuse by a stepparent is not a proper ground to vary the parent’s will. At paras. 85 – 86, he explained:

[85] I have also concluded that the abuse testified to by the plaintiffs is not a proper ground to vary the Will. This is made clear in the decision of Boyd J. of this court in W.G. Estate v. T.G., [1998] B.C.J. No. 2369 at para. 79 as follows:

79 I have made no special additional awards to any of the children on the basis of any moral obligations. By virtue of the testator’s difficult personality, all of the testator’s children experienced relatively dysfunctional childhoods. The first family essentially complain they were financially, if not emotionally deprived and abandoned, following their parents’ divorce. S.G. maintains that he was both physically and sexually abused. While his evidence was extremely disturbing I make no finding concerning his credibility. Even assuming the truth of his allegations, the result remains unaffected. A wills variation action is not a vehicle to redress any past wrongs nor to notionally award damages to an aggrieved claimant who suffered ill treatment at the hands of the testator (Brauer v. Hilton, (1979) 15 B.C.L.R. 116 (B.C.C.A.)).

[86] The WVA should not be used as a vehicle to award damages for past bad behaviour on the part of the testator, although it is of course quite legitimate to take the circumstances of a child or spouse into account and in so doing consider whether those circumstances arose as a result of some behaviour of the testator that might give rise to a moral claim. In this case I can find no sufficient evidence of a link between Rosemary’s treatment of her children and any adverse circumstances in which they find themselves.

 

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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