Son Disinherited For Valid and Rational Reasons

You will get nothing

Holvenstot v Holvestot Estate 2012 BCSC 923 is an excellent example of the wills variation claim brought by a disinherited son of the deceased.

The claim  was dismissed for some of the valid and rational reasons that the deceased stated as reasons for not having a moral obligation to provide for her son.

The deceased left a long list of complaints that she had with her son to support her reasons for his disinheritance, that included previous court transcripts where she told the court that she wanted to move away from her son and for him “not to bug her anymore”.

The plaintiff alleged  that the mother had a moral obligation to “make adequate provision” for him in her will.

He alleged that the size of the mother’s estate was adequate for such a provision, and no circumstances exist which would negate a moral obligation.

In particular, the plaintiff alleged in effect, that he did not commit any (or any significant) blameworthy conduct toward the mother, with the result that her reasons for disinheriting him are either untrue or not rationally connected to her decision to disinherit him.

Much of the judgment is spent by the court reviewing each of the reasons given by the deceased for disinheriting her son, with the court rejecting some reasons and upholding others.

The court found as a fact that, the plaintiff commenced an action against his mother to have her declared mentally incompetent. The action failed, and the mother was declared competent.

The mother was required to sue the plaintiff in order to prevent him from getting ownership of two acres of her land and to compel him to return items of her property.

All of this litigation cost the mother a considerable amount of money and caused her much emotional upset.

The court found the  reasons to be  true.

In my opinion, these reasons are rationally and logically connected to the mother’s decision to disinherit her son.

As I see it, a judicious parent, applying contemporary community standards in the circumstances existing at the time of the mother’s death, could reasonably have decided to disinherit the plaintiff, for these reasons alone.

Of course, there are several other reasons that I have found were true and were relied on by the mother. They only strengthen the conclusion that the court should defer to the mother’s decision to disinherit her son.

The general principles which apply in an action of this kind were set out by the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. It was established that a testator may owe a legal obligation or a moral obligation to his or her independent adult child. A legal obligation will generally not arise unless the child contributed to the estate in some way. In the present case, it is conceded that the mother had no legal obligation to the plaintiff to make provision for him in her will.

In Tataryn v. Tataryn Estate at paragraph 31, in discussing a testator’s moral obligation, Madam Justice McLachlin stated in part, as follows:

…if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation [i.e., a moral obligation], some provision for such children should be made .

The circumstances which can negate the existence of a moral obligation include the reasons relied on by a testator, where those reasons are valid and rational. In Kelly v. Baker, the Court of Appeal defined the test for assessing reasons given by a testator in this way (at paragraph 58):

The law does not require that the reason expressed by the testator in her will, or elsewhere, for disinheriting the appellant be justifiable. It is sufficient if there are valid and rational reasons at the time of her death – valid in the sense of being based on fact; rational in the sense that there is a logical connection between the reasons and the act of disinheritance.

the decision of the Court of Appeal in Hall v. Hall, 2011 BCCA 354. At paragraph 43, speaking for the court, Madam Justice Neilson stated in part as follows:

[43]      … 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.”

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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