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Wills Variation: Disinheritance For Misconduct

Contrary to what many British Columbian’s believe, it is possible under the wills variation provisions of  S. 60 WESA for the court to refuse variation to a person whose character or misconduct in the opinion of the court, disentitles him or her to such relief.

Such misconduct or lack of character is measured as of the date of death, not subsequently, and must be directed at the testator.

Generally speaking, the conduct or lack of character must be relatively severe in order to justify a disinheritance, and the testator should be careful to leave detailed valid and rationale reasons for the disinheritance, preferably in a written memorandum to accompany the original will.

S.62 WESA states that in a proceeding brought to vary the will, the court may accept the evidence, it considers proper respecting the will maker’s reasons for making the gifts in the will, or alternatively, for not making adequate provision for the will maker spouse or children, including any written statement signed by the will maker.

In estimating the weight to be given to a statement referred to by the testator, the court must have regard to all of the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement.

In judging the severity of the misconduct alleged by the testator for disinheritance of a child or spouse, the courts have previously declined to allow the disinheritance unless the allegations are valid and rational.

The leading case in this regard is the Court of Appeal decision of Kelly v Baker 15 ETR (2d) 219:

“In deciding a wills variation claim, the task of the court is to decide whether, at the date of the testator’s death, his or her will was consistent with the discharge by a good parent of his or her duties to his or her family. The law does not require that the person expressed by the testator in his or her will, or elsewhere, for disinheriting be justifiable. It is sufficient if there were valid and rational reasons at the time of his or her death – valid in the sense of being based on facts; rational in the sense that there is a logical connection between the reasons, and the active disinheritance..”

In Fuller v Fuller 2008 BCSC 702 the court allowed a son of the deceased to succeed in a wills variation claim brought against his late father’s estate, and whose will inaccurately stated that he had made adequate provision for his son throughout his lifetime by gifts to the extent that he owed no further obligation.

The court found that in fact the gifts made by the father to the son were modest at best, and that the reasons for the disinheritance were not valid and rational. The will was varied to allow the son to receive two thirds of the $90,000 estate.

Other cases have ignored reasons for disinheritance left by the testator, for such reasons as the beneficiary “being gay”, “being in incompetent weakling”,” has been unsuccessful in multiple business ventures”, and many other alleged reasons that when scrutinized are not valid or rational.

Holvenstot v Holvestot Estate 2012 BCSC 923 is an excellent example of the wills variation claim brought by a disinherited son of the deceased where the claim  was dismissed  for valid and rational reasons that the deceased stated as reasons for not having a moral obligation to provide for her son.

The deceased left a long list of complaints that she had with her son to support her reasons for his disinheritance, that included previous court transcripts where she told the court that she wanted to move away from her son and for him “not to bug her anymore”.

The plaintiff alleged  that the mother had a moral obligation to “make adequate provision” for him in her will.

He alleged that the size of the mother’s estate was adequate for such a provision, and no circumstances exist which would negate a moral obligation.

In particular, the plaintiff alleged in effect, that he did not commit any (or any significant) blameworthy conduct toward the mother, with the result that her reasons for disinheriting him are either untrue or not rationally connected to her decision to disinherit him.

Much of the judgment is spent by the court reviewing each of the reasons given by the deceased for disinheriting her son, with the court rejecting some reasons and upholding others.

The court found as a fact that, the plaintiff commenced an action against his mother to have her declared mentally incompetent. The action failed, and the mother was declared competent.

The mother was required to sue the plaintiff in order to prevent him from getting ownership of two acres of her land and to compel him to return items of her property.

All of this litigation cost the mother a considerable amount of money and caused her much emotional upset.

The court found the  reasons to be  true.

In my opinion, these reasons are rationally and logically connected to the mother’s decision to disinherit her son.

As I see it, a judicious parent, applying contemporary community standards in the circumstances existing at the time of the mother’s death, could reasonably have decided to disinherit the plaintiff, for these reasons alone.

 

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 are 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.

In the Court of Appeal  decision  Hall v. Hall, 2011 BCCA 354. At paragraph 43 stated:

[43]      … To succeed in his challenge to her will, Tony must establish these reasons were false or unwarranted: Bell v. Roy Estate …. In considering that proposition, it is not necessary to find the reasons were justifiable. It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance: Kelly v. Baker

[44) Having regard to this re-statement of the law in Hall v. Hall, I think it is questionable whether the reasoning in the earlier decisions of this court which I have discussed, should be followed. If I am wrong, then I would favour using the “judicious parent” test in deciding the issue of whether a “true” reason of a testator for disinheriting a spouse or child, is also rationally connected to the decision to disinherit. I would apply a test similar to that stated by Mr. Justice Sewell in paragraph 70 of LeVierge v. Whieldon (and not as stated by him in paragraph 61). That is, in deciding whether a testator’s reason is rationally connected to the decision to disinherit, it would be enough that a judicious parent could have made that decision, based on the reasons that existed. There should be no requirement that a judicious parent would have made the decision to disinherit in the same circumstances. In my view, if it were otherwise, the court would be deciding, in effect, whether the reasons were objectively “justifiable.”

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