On May 19, Trevor Todd presented a seminar on disinheritance issues to 200 Realtors on the West side of Vancouver.
One of the attendees summarized many of the matters that Trevor touched on. He sent it to Trevor for review and Trevor found it well writtten and accurate.
Accordingly, disinherited.com has decided to republish it on the disinherited.com blog:
Recently lawyer Trevor Todd presided over a REALTORS® seminar entitled “Disinherited.”
Mr. Todd has been practising law for 37 years, and Estate Litigation exclusively for 20 years (www.disinherited.com) specializing in inheritance disputes, often occurring between siblings. His presentation dealt with wills and specifically parties to the will who believe they have been aggrieved.
What sets British Columbia apart from any other provincial jurisdiction in the country is the Wills Variation Act (WVA), legislation that’s been on the books for 90 years.
This permits adult children (or spouses), who are living independently, to challenge a will if there is reason to believe they have not been provided for “adequately” in the distribution of the deceased’s assets.
This includes all assets in the province, including real estate, except those assets deemed to be joint tenancy or in trust.
While spouses often have the first claim to such assets, Todd noted most of his cases involve situations where one, or more, children believe they have not received a proportionate or “adequate” share.
Children, as defined by the WVA, are deemed to be within the bloodline or have been adopted, but do not include foster children or stepchildren.
In every other province, the British legal doctrine of “Testamentary Autonomy” takes precedent whereby a man’s home is his castle and he can do with it as he wishes.
This includes the disposal of his assets, whether in life or upon death.
So, if the illegitimate adult child or the black sheep of the family is bequeathed $100 from a multi-million dollar estate anywhere else in Canada, that person will probably have little recourse.
The principle behind Testamentary Autonomy regarding an adult child who can live independently (not requiring care for physical or developmental challenges) is that the parent had raised, housed, fed, clothed and educated that adult for his/her first 19 years.
What more should be asked of the parent?
British Columbia seeks to address what could be a financial imbalance between family members through the WVA.
Those who would benefit would be the aforementioned illegitimate child, even if such a person had no previous contact with the parent or family for decades. (Mr. Todd credits DNA testing for having won numerous cases.)
Besides illegitimate children, the Wills Variation protects those who have been disinherited because of lifestyle choices/circumstances or those cut off because of the parent’s spite or mental capacity.
Or, as Mr. Todd explained, to prevent an unbalanced distribution of assets between siblings based on gender bias, a custom that continues to exist in many families and cultures.
Should a client seek legal recourse under the WVA, judgments will be based on the merits of each case, although, as always, past common law decisions will prevail.
The key for a ruling judge when offering recompense will be “adequacy”, not necessarily equality based on pure percentages of benefactors or challengers.
For example, the adult child who had been a caregiver to an aging parent for numerous years may be entitled to a greater percentage of the estate than the sibling who bore no responsibilities.
At the same time, the sibling who led a carefree life would still be entitled to his/her “adequate” portion. No doubt case law deals with such a scenario.
Once “adequacy” has been addressed, with its legal and moral obligations, the province will not interfere with the Testamentary Autonomy principle if the will is just.
In short, if Mr. Todd’s advice can be surmised, before Mom and Dad pass on, it would be a good time to determine the family’s bloodlines — in full detail — and have the parents’ wishes committed in writing.