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Wills Variation: Abandoned Twins Awarded 70% Estate

Wills Variation: Abandoned Twins Awarded 70% Estate

Jung v Poole estate 2021 BCSC 623 awarded two twins who were abandoned by their father shortly after birth and then again after a contested custody application at age 4, 70% of the residual estate of the deceased, with the two neighbors who had been left the estate receiving 15% each.

After abandoning the children at birth, and subsequently losing a custody trial, despite being awarded generous parenting time, the deceased through bitterness blame the children and in his last will, stated that they were illegitimate, that he wanted no part of his estate to go to them, and he instructed his executors to fight any attempt by them to vary the will.

The court found that the deceased attitude towards the children was misguided, ill-conceived, and a breach of his moral obligation to provide for the twins.

The Law

The validity of the testator’s reasons for disinheriting an adult child is based on fact. The rationality of his or her reasons must consist of a logical connection between the facts and the act of disinheritance . Kelly v baker 1996 BCJ 3050 BCCA.

A testator’s failure to support his or her minor children is a factor that can be considered in determining the existence of a moral claim. Brown v . Ferguson 2010 BC SC 1890 at para 101.

An adult child’s decision to have no contact with the testator can be a rational ground for disinheritance. Enns v Gordon Estate 2018 BC SC 705 at 103 – 106.

However if the lack of a relationship between the testator in his or her child was the testator’s fault, as opposed to mutual estrangement, a moral duty can be found in can intensify if the testator rejects the child’s efforts at reconciliation. Lamperstorfer v Plett 2018 BC SC 89 at para 195.

The moral duty of a testator who has been rejected by member of his or her family is not required to ignore the rejection. The testator must be judicious, he need not be impervious . Hall v . Hall, 2011 BC CA 354 at para 26 – 27.

The moral obligation of a testator to a child begins when the child is born. The law of nature leaves each child utterly dependent upon his or her parents during infancy, and by extension to childhood in later years and a diminishing capacity. Tomlyn v Kennedy 2008 BCSC 331

In the Court of Appeal decision Gray v Nandel 2002 BCCA 94 the court stated at paragraph 17:

” 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 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 material way; the will was his last opportunity to do right by his son.”

McMain v Lebalc 2013 BCSC 891 also involved a testator who through no fault of his son had little contact and no relationship with his son for the 20 years prior to his death, and to disinherited his son is a result of that estrangement.

The court in McMain stated that in the circumstances of this case,” the plaintiff is a strong moral claim to share of the of the testator’s estate. The plaintiff had come to the conclusion that his father did not love them and wanted nothing to do with them. I do not blame him. The testator did almost nothing to lead them to think otherwise. It was the only rational conclusion for him to have drawn from a lifetime of experience.”

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