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Wills Variation: Overcoming Estrangement

Perhaps top amongst the purported reasons for disinheritance between a parent and child is alleged estrangement and overcoming estrangement cases often present difficult wills variation cases as the facts are invariably diametrically opposed.

It is however very important to get to the basis of why/how the estrangement was caused- when I see a child leave home at an early age it is invariably for good reason.

A will-maker’s reasons for disinheriting a child may negate his obligations to that child; however, the reasons must be valid and rational at the time of the will-maker’s death – valid in the sense of being based on fact, and rational in the sense that there is a logical connection between the reason and the act of disinheritance. See Kelly v. Baker, [1996] B.C.J. No. 3050, at para. 58.

In numerous cases decided after Kelly v. Baker, there has been “a growing trend to favour rejection of objectively insufficient reasons”, as noted in 2010 at paragraph 142 of McBride v. Voth, 2010 BCSC 443.

In LaVierge v. Whieldon Estate, 2010 BCSC 1462, the court held, at paragraph 61, that it is appropriate to vary a will, even if the will-maker acted on true facts and there is a logical connection between those facts and the decision to disinherit, if the result of such disinheritance would be inconsistent with an objective standard of what a judicious parent would do in the circumstances.

Estrangement

If the Will does not provide any express reasons for a disinheritance, the court may infer what those reasons might have been: McLellan v. McLellan, 2011 BCSC 461 (para. 138).

Estrangement is not an objectively sufficient reason for disinheritance if the estrangement was caused or contributed to by the will-maker.

In Baulne v. Baulne Estate, 2002 BCSC 1905, the court stated at paragraph 59:

Where a reason for disinheritance is based on fact, such as a long-standing estrangement, the court should be and is prepared to consider how the estrangement occurred and, in essence, to consider questions such as fault or blame for the estrangement.

(See also Wilson v. Watson, 2006 BCSC 53, para. 19; Doucette v. Doucette Estate, 2007 BCSC 1021, para. 26)

Under the heading of Estrangement/Neglect in McBride v. Voth, 2010 BCSC 443, the court stated the following, at paragraph 132:

“The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children.”

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