Adopted Daughter Awarded Equal Share In Wills Variation Claim

tug of warAdopted Daughter Awarded Equal Share

Laing v Jarvis Estate 2011 BCSC 1082 is yet another Wills Variation claim in British Columbia, where the courts have awarded an equal share to a disinherited child, in this case, an adopted one.

The plaintiff was 55 years of age and was adopted by the deceased who died in 2007 at age 84.

The deceased left everything to her natural son and there was no mention whatsoever of the plaintiff in the will.

The notes taken by the lawyer who prepared the will recorded that the plaintiff had had no contact with the deceased “in years”, and that the plaintiff had disowned the deceased.

The plaintiff was married and had 2 young children in her care, one of which was disabled. Her husband was unemployed and they had together almost no assets.

The court awarded the plaintiff an equal share in the estate.

The evidence did not confirm that the plaintiff had no contact with the deceased and years, or that the plaintiff had disowned the deceased.

The court found that while there might have been long periods where the plaintiff and the deceased did not see each other, they were in contact by telephone. The plaintiff also had medical and family reasons for not traveling a long distance to visit her mother.

Accordingly there were no valid and rational reasons for the deceased at the time of her death, to disinherit her daughter.

The court followed an increasingly strong line of case authorities to the effect that there is a presumption that children should share equally in their parents estates.

The court made the following significant quote:

In McBride v Voth, 2011 BCSC 443, Mdm. Justice Ballance considers the proposition of treating adult independent children equally when considering the act. She states at paragraph 134:

” On the other hand, in Vielbig v Waterland Estate (1995) 1 BCLR (3d) 76, (CA), the Court of Appeal held that equal treatment among independent adult children is prima facie favor from a moral duty standpoint. In Ryan, the court held that in the absence of relevant reasons for a non-equal distribution, there was a reasonable expectation that adult children were shared equally, you don’t know legal obligation requiring equal distribution exists. The emerging rule of thumb to the effect that equal apportionment among children prima facie discharges at testator’s moral duty was applied in Inch. There, the court held that an equal distribution was prima facie fair, despite the fact that one child received significant assets by way of inter vivos transfers.

Disinherited.com strongly approves of this increasing trend by the court to treat adult independent children equally on a prima facie basis.

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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