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BC Wills Disinherited Lawyer Lorne MacLean

BC Wills Variation Act and Disputed Estate Litigation lawyer Lorne MacLean

The Vancouver, Surrey, Kelowna and Fort St John BC estate litigation lawyer offices of MLG provide the following update on disputed wills litigation issues in BC.The recent BC disputed Wills Variation Act (“WVA”) case of Hall v. Hall, decided by our British Columbia Court of Appeal,  summarizes the current test for  disinheriting an adult child. The deceased testator (will maker)  left a life estate worth $300,000 to her spouse  and upon his death the balance of the estate was to go entirely to one of her two sons.  The disinherited son sued under the BC WVA claiming that his mother had not provided adequately for his maintenance and support as required by section 2 of the WVA.

The evidence disclosed that he had assaulted his mother and had been convicted on this assault. In addition he had been estranged from his mother for years, while his brother and family had a very close relationship with his mother.  Finally, at the time of making of the will the disinherited brother was a successful electronics technician. Subsequent to the preparation of the will there was some evidence that the disinherited son had health issues.

BC’s highest court dismissed the disinherited son’s appeal because:

In essence, Jean owed no legal duty to Tony. Nor did the evidence reveal a moral obligation that entitled him to share in her estate. I am satisfied the trial judge made no error in finding her reasons for disposing of her estate in the manner she chose were not false or unwarranted, and that her will was entitled to deference.

If you have been treated unfairly in a will or excluded from any inheritance at all call us immediately at 1-877-602-9900 to make an appointment at any of our 4 offices in Vancouver, Surrey, Kelowna or Ft St John as strict deadlines exist for commencing an action. Our lawyers are fluent in Punjabi, Hindi, Farsi, Mandarin, and Cantonese as well as English so that we can help as many people as possible affected by this emotional issue.

We provide the critical paragraphs below on how the court came to that conclusion:

2]             Jean died on March 1, 2007, leaving an estate with a net value of $309,190. In her will, made February 28, 2007, she appointed Paul as her executor, left a life estate in her home to her common-law husband, Neil William, directed that her home be sold on Mr. William’s death, and that the proceeds and residue of her estate be paid to Paul, or to his children if Paul predeceased her. In her will, she gave this explanation for disinheriting Tony:

I have left nothing to my other son, Roy Anthony Hall, who has for a great number of years been estranged to me.  For reasons that I do not understand, my son has not wanted anything to do with myself or my family.  It has been many years since I have seen him and on the last occasion that I did see him he did not wish to talk to me.  My son does not come and visit me nor telephone me nor communicate with me.  My said son, Roy Anthony Hall, has an excellent brain, has money and is most capable of looking after himself.  He is a top electronics man in his field and I am not worried about his being able to look after himself financially speaking.  My son, Paul Stuart Hall, and his wife and children are very close to me and they are the only family that I have besides my common-law husband, Neil Douglas William.  Accordingly, because of all the joy, love and friendship that I have received from Paul, his wife and family and because of Roy’s deliberate action of refusing to have anything to do with me, I have decided to leave my entire estate, as modest as it is, to Paul and then on to his family for their full use and benefit.

[36]         Section 2 of the Act governs Roy’s application. It states:

Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the spouse or children.

[37]         An application under s. 2 is thus a two-stage process. First, the court must determine whether adequate provision has been made for the proper maintenance and support of the applicant. If not, at the second stage the court must consider what provision for the applicant would be adequate, just and equitable.

[38]         The Supreme Court of Canada set out the principles that guide this analysis in Tataryn v. Tataryn, [1994] 2 S.C.R. 807. McLachlin J., writing for the Court, observed that s. 2 gives the court broad discretion in advancing two interests protected by the Act. The first is ensuring adequate, just and equitable provision for a testator’s spouse and children. The second is testamentary autonomy. If the second must yield to the first, the ultimate question is “what is adequate, just and equitable in the circumstances judged by contemporary standards”. In answering that question, the court will be guided by two sets of norms. The first are the testator’s legal obligations to his or her family. The second are the moral obligations to family members that arise from reasonable expectations of what a judicious person would do in the circumstances. Claims based on legal obligations will generally take precedence over those based solely on moral duties. The testator’s “legitimate concerns” should be recognized in assessing the extent of any moral obligations. Finally, there will be a wide range of appropriate options in judging whether the testator’s dispositions meet the requirements of the Act, and one’s freedom to dispose of one’s estate should be treated with deference as long as the options chosen fall within that range.

[39]         With specific reference to the claims of adult independent children, the Court stated a testator will not generally have a legal duty to an adult independent child unless the child contributed to the estate. As to moral obligations toward adult children, these are tenuous, but may justify entitlement if the size of the estate is adequate and the circumstances do not negate such an obligation.

[40]         Here, the trial judge in essence found Jean’s testamentary autonomy trumped any moral obligation she owed to Tony. The question is whether he erred in reaching that conclusion.

43]         Jean gave three reasons for disinheriting Tony. The first was his lengthy estrangement from her. The second was her view that he was capable of being financially independent. The third was the comparative love and support she had received from Paul and his family, whom she viewed as her “only family”. To succeed in his challenge to her will, Tony must establish these reasons were false or unwarranted: Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (C.A.) at para. 36. 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 (1996), 82 B.C.A.C.150 at para. 58.

48]         In essence, Jean owed no legal duty to Tony. Nor did the evidence reveal a moral obligation that entitled him to share in her estate. I am satisfied the trial judge made no error in finding her reasons for disposing of her estate in the manner she chose were not false or unwarranted, and that her will was entitled to deference.

[49]         I would accordingly dismiss the appeal.