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Wills Variation- Dismissed For Valid and Rational Reasons

Wills Variation Claim Dismissed

LeVierge v Whieldon 2010 BCSC 1462 is illustrative of a case where an adult child’s claim under the Wills Variation act was dismissed for valid and rational reasons.

The testatrix left her $1.2 million estate to two of her three children, none of whom were in need.

The daughter who was disinherited commenced a Wills Variation claim that the trial Judge dismissed.

The daughter and her mother had a difficult relationship that caused the daughter to not contact her mother for some years.

The Court found that it was the daughter who was principally responsible for the estrangement and that was relevant to the question of whether it was appropriate for the Court to override the exercise of the deceased’s right to dispose of her property on death.

In addition, the daughter had after some years, renewed contact with her father. She then used virtually all of his assets ( $160,000) as a down payment on her house. Then when he was hospitalized for ever two years, she used his pension income to pay her mortgage and taxes of $2600 per month.

Several witnesses testified, including the lawyer who prepared the deceased’s will, that the reasons she disinherited her daughter related to her using all of her father’s assets, so that he had nothing to leave to his other two children.

In addition, the plaintiff treated her mother” shabbily” for years, beyond the usual disagreements that arise between parents and adult children.

The court found that the decision to disinherit her daughter was one that a judicious parent applying contemporary community standards could reasonably have reached.

The plaintiff failed to prove that her mother did not have a rational and valid reason to disinherit her.

The Court concluded that ” a testator must be judicious, she need not be impervious.”

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