Trevor Todd and Jackson Todd have handled contested estates including pursuant to wills variation proceedings for over 60 combined years.

A will makers reasons for disinheriting a child in his or her will must be valid and rational.

Fuller v Fuller 2008 BCSC 702 is a familiar scenario in estate litigation.

The will that states that no provision is being made for a child due to estrangement, and that the child was adequately provided for by generous gifts throughout the deceased’s lifetime, so as to satisfy any moral obligation to provide for an adult child.

Very often that same disinherited child had been abandoned by that parent during the child’s youth, not been adequately provided for, and the supposed gifts made during the lifetime are simply a lie or gross exaggeration.

That was the case in Fuller. It was only a $90,000 estate and the disinherited son was awarded 2/3, with the other 1/3 going to the named beneficiary, a non family member.

The deceased and the plaintiff’s mother separated when the plaintiff was 12. Both before and after the separation, the deceased and the plaintiff had a very limited relationship; prior to separation because the deceased worked out of town and was rarely home, and after separation because there was little or no access exercised by the deceased to the plaintiff, who resided after separation for the most part with his maternal grandparents. When the plaintiff was 19, the deceased contacted him and the two met on a couple of occasions over the next couple of years. The plaintiff invited the deceased to his wedding, which took place in February 1973, but the deceased did not attend. The deceased did not contact the plaintiff again until late 1974 when he arrived unannounced and asked to meet his grandson, the plaintiff’s son, who was born in March 1974. For approximately two weeks there was contact between the plaintiff and the deceased, and then contact ceased again. In 1977, the plaintiff’s daughter was born.

[6] In 1992, the plaintiff was contacted by his mother, who advised him that the deceased wished to visit and to reconnect with the family. The plaintiff, who was sceptical about welcoming the deceased back into his life, as a result of the deceased’s past conduct, hesitantly agreed. The deceased did visit, explained to the plaintiff that he had had a heart attack which had put his life into perspective, and said that he wanted to make it right with the plaintiff’s family in case he did not have much longer to live. The visit lasted approximately one week. Following that visit, the plaintiff and the deceased had regular telephone calls and rekindled their relationship.

The Will contained the following proviso:

I DECLARE that after careful and anxious thought I have decided not to make any provision in this my last will and testament for my only son Stephen Lee Fuller. I do so because, after having made gifts of considerable value to Stephen and his family, he has become estranged from me, and has, I believe, taken advantage of my generosity. I further declare that I am aware of the provisions of the Wills Variation Act, R.S.B.C. and of my obligations in law towards my son. I believe that I have provided adequately for my son through gifts made to him during my lifetime, and feel that I have no further obligation towards him. I accordingly instruct my executor to defend with vigour any application to vary the terms of this my last will and testament.

In this case, it is clear that absent valid and rational reasons for disinheritance, the deceased owed a moral duty to make provision for the plaintiff from his estate. There are no other persons to whom the testator owed a legal duty. The size of the estate is of sufficient size to permit provision for the plaintiff. With regard to the reasons for disinheritance, the starting point is the will itself, which expresses the reasons for disinheritance, as I quoted earlier, namely:

…after having made gifts of considerable value to Stephen and his family, he has become estranged from me, and has, I believe, taken advantage of my generosity.

And further:

I believe that I have provided adequately for my son through gifts made to him during my lifetime, and feel that I have no further obligation towards him.

[27] In Kelly v. Baker (1996), 15 E.T.R. (2d) 219 (B.C.C.A.), the Court of Appeal, at para. 58, said:

In deciding a claim under s.2(1) of the Act, the task of the court is to decide whether, at the date of the testator’s death, her will was consistent with the discharge by a good parent of her duties to her family…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 were 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.

[28] On the evidence before me, I do not accept that the deceased had valid and rational reasons for disinheriting the plaintiff. He, I find, had made, at the very best, modest gifts to the plaintiff, limited to the $7,000 or $8,000 down payment on the Bayview house and some modest renovation costs, and one-third interests in Lot 17 to the plaintiff and the plaintiff’s wife. With regard to the Bayview property, all was lost when the house was foreclosed on, and the plaintiff and his wife were left with a debt rather than an asset, at least part of which I find can be attributed to the deceased’s unilateral decision to leave the residence and stop his contributions towards household expenses. The gift of an interest in Lot 17 was reneged upon by the deceased, and indeed he retained counsel and commenced litigation against his only son to obtain return of that gift. Any estrangement, I am satisfied, was initiated by the deceased and not by the plaintiff. There is no evidence to support the assertion of the deceased in his Will that the plaintiff took advantage of his generosity.

[29] I conclude that the deceased owed a moral duty to make provision for the plaintiff, that the circumstances do not negate the existence of the duty, and that in disinheriting the plaintiff, the deceased failed to act as a judicious parent in the circumstances. The plaintiff is not a person of means. He clearly has adequate income at the present time, from work as a foster parent, a driver, and a security guard, but he has no real estate, he has only very modest investments, and he has a debt secured against his only vehicle, which debt exceeds the value of the vehicle. He rents accommodation, and he has health problems.

[30] Taking into account the aim of the Wills Variation Act, as well as the principle that testamentary autonomy should be interfered with only so far as the statute requires, what variation is appropriate in the circumstances? Under all of the circumstances of this case, I have concluded and I order that the plaintiff is entitled to two-thirds of the net estate of Frederick Fuller.