Here are six cases where the court in a wills variation action varied the will to provide at least %50 to an adult child who was not adequately provided for in their parent’s will.
The cases will not apply to every disinherited adult child but are a good guideline where the court is likely to vary the will to provide at least half to an adult child.
Here are six short summaries of decisions where an adult child was awarded 50% or more of a parent’s estate:
1. McMain v. LeBlanc, 2013 BCSC 891, the will-maker’s estranged son was completely disinherited. The $330,000 estate was left solely to the will-maker’s niece. The court found that the will-maker was the primary cause of the estrangement, as he unilaterally withdrew from parent-child relationship. The plaintiff was awarded $180,000 from the estate.
2. Baulne v. Baulne Estate, 2002 BCSC 1905, the parents of the claimant committed suicide together, taking with them their disabled son. The claimant was the only surviving child of the deceased couple. For various reasons stated in their mirror wills, including the claimant’s refusal to allow them to have access to their grandchild, the deceased couple disinherited the claimant from their estates, which had a combined net value of $467,000.
The claimant’s refusal to allow his parents to visit their granddaughter was true, and in fact, formalized in a restraining order obtained by the claimant. Notwithstanding the truth of the will-makers’ reason for the disinheritance, the court held that the deceased parents, particularly the mother, were jointly responsible for the estrangement, and varied the will such that the claimant received 60% from each of his parents’ estates. The defendant beneficiaries of the wills were the nieces and nephews of the claimant’s deceased parents.
3. Schipper v Schipper Estate 2010 BCSC 1067
The Plaintiff adult daughter was only child of the testator and her husband. The daughter had very close relationship with her parents until about three years before the testator’s death. The Testator’s will gave 25 per cent of estate to the daughter, 50 per cent to an adult nephew J, and 25 per cent to adult nephew A .
The Testator’s rationale was that daughter had not visited her for three years, had not shown interest in her parents, and was not in need of financial assistance .The daughter brought action for variation of testator’s will under Wills Variation Act to make adequate provision for her and the action was allowed. The daughters share was increased to %50 with J receiving 2/3 of the remaining and one third of the remaining to nephew A. Daughter found to be loving ,faithful child. The daughter’s claim was not based on financial need as her combined assets with her husband were $980,000.
The sufficiency of reasons for disinheritance was taken as part of the question of whether reasons of the testator were rational .
The testator overreacted to perceived lack of interest by daughter .the testator had little factual information about daughter’s financial need .The reasons expressed by testator for making dispositions were not rational , nor did they provide a proper basis for supporting provision made. The reasons did not have logical connection with reduced inheritance.
4. Pattie v. Standal 42 B.C.L.R. (3d) 211 a child never saw his father again after age seven due to a divorce.
The child’s mother did not receive child support. The deceased left his estate to his common law wife of two years.
There was no memorandum to the will or other evidence as to why the child was disinherited.
The court awarded the child 50% of the estate on the basis of both the failure to meet the moral obligation, as well as failing his legal obligation to support his child during his lifetime.
5. Gray v Gray Estate 2002 BCCA 94:
(89) 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.
[90] Here, too, the testator had one last opportunity to behave after the manner of a judicious parent and recognize his moral obligation to his son by means of his will. He failed in this.
[91] In my estimation, as in Gray, this case involves the testator’s unilateral withdrawal from the parent child relationship. I appreciate that there was occasional contact between the plaintiff and testator, but my overall finding is that the plaintiff wanted a relationship, and the testator, for whatever reason, could not be bothered.
[92] In my judgment, the testator cannot resort to his indifference to his parental responsibilities in life as a justification for avoiding his moral obligations to his only son in death.
6. Ryan v Delahaye Estate 2003 BCSC 1081, concluded that inter vivos (life time) transfers and assets passing by right of survivorship pass outside the estate, and are therefore not subject to a wills variance claim.
Nevertheless she ruled that the court can consider them when assessing, from the perspective of a judicious person, whether a parent has met his or her moral obligations to an adult child.
The court considered that the Deceased parents had paid for their son’s education and made interest-free loans to him. The parents had not provided similar benefits to their daughter.
Smith J. found that the 80/20 split in the will (lion’s share to the son) did not provide proper maintenance and support for the daughter.
The court ruled that an adequate, just and equitable distribution would give the daughter an equal share of the residue of the estate and varied the will to divide the residue equally between the two children.
