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Vancouver Unfair Will Estate Disputes are amongst the most distressing cases a client can be involved in. First you lose a loved one but then a second wave of hurt washes over you as you discover you have been unfairly left out of your fair share of that loved one’s estate. MacLean Estate Litigation’s Vancouver Unfair Will Estate Disputes lawyers can help you find a resolution to the unfairness. Our Vancouver Unfair Will Estate Disputes lawyers act for spouse’s infant children, adult children and other relatives of the deceased Willmaker.

Contact us across BC and in Calgary toll free at 1-877-602-9900.

Adult children are a class of claimants often involved in Vancouver Unfair Will Estate Disputes. Law has developed in Vancouver and across BC that establishes what principles should be applied to dealing with Vancouver disinherited adult children. The section of WESA that allows for unfair Wills to be varied is:

60  Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding 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 will-maker’s estate for the spouse or children.

Vancouver Unfair Will Estate Disputes – New Case Adult Children

In a recent BC Supreme Court case the learned trial judge awarded a disinherited child a quarter of a million dollars after he noted she had been emotionally and physically abused by her deceased father, not supported properly as a child and young adult and given nothing in his Will. In the judgement the Court set out a concise statement of the law to be used in a Vancouver Unfair Will Estate Disputes case involving an adult child’s claim:

[90]         In reference to the moral claim of independent adult children, the Court in Tataryn observed that while they “may be more tenuous” than that of a spouse or dependent child, some provision for adult independent children should be made if the size of the estate permits and in the absence of circumstances that would negate the existence of such an obligation: Tataryn, at 822-823.

[91]         In Dunsdon Madam Justice Ballance conveniently summarized the considerations that inform the existence and strength of a testator’s moral duty to independent children:

[134]    In the post-Tataryn era, the following considerations have been accepted as informing the existence and strength of a testator’s moral duty to independent children:

  • relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
  •  size of the estate;
  •  contributions by the claimant;
  • reasonably held expectations of the claimant;
  • standard of living of the testator and claimant;
  • gifts and benefits made by the testator outside the will;
  • testator’s reasons for disinheriting;
  • financial need and other personal circumstances, including disability, of the claimant;
  • misconduct or poor character of the claimant;
  • competing claimants and other beneficiaries:

(See Clucas v. Clucas Estate, [1999] B.C.J. No. 436; McBride v. McBride Estate, 2010 BCSC 443; Yee v. Yu, 2010 BCSC 1464; Wilson v. Lougheed, 2010 BCSC 1868)

97]         As I referred to earlier, W.F.M. made no material financial contribution to J.R.’s support after the age of 13. In Lukie v. Helgason (1976), 1 B.C.L.R. 1 (C.A.), Taggart J.A. expressed the view that the failure to provide support to a child during his or her minority is alone an insufficient basis for granting relief under the WVA. However, he affirmed that the history of the relations between the testator and the claimant is evidence the court may consider along with all the other circumstances in deciding whether relief should be granted. The more recent jurisprudence supports the view that the failure of a parent to financially contribute to a child’s support during his or her minority is a factor in assessing his or her claim (See: Martin v. McIlwain Estate (1992), 66 B.C.L.R. (2d) 195 (S.C.); Thatcher v. Bowling, 1992 CarswellBC 105 (S.C.)). The court in Pattie v. Standal Estate (1997), 42 B.C.L.R. (3d) 211 (S.C.) at para. 26, found that, in the absence of special circumstances, such a failure creates a basis upon which an adult child may advance a moral claim to a share of his or her parent’s estate.

[98]         I turn next to consider whether W.F.M.’s moral duty to J.R. has been negated.

[99]         When faced with a long period of estrangement as in this case, the court will inquire into the role played by the testator. If the estrangement is largely the fault of the testator, it will likely not negate a testator’s moral duty to an adult child. McBride, at para.132; Gray v. Nantel, 2002 BCCA 94 at paras. 17-21. The Court’s summary at para.132 of McBride is of particular relevance to this case:

[132]    In the early development of the caselaw, a long period of separation, abandonment or estrangement between a child and testator was frequently, though not invariably, taken to militate against finding a moral duty to an adult child. 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:Gray v. Gray Estate, 2002 BCCA 94, 98 B.C.L.R. (3d) 389, Doucette v. Clarke, 2007 BCSC 1021, 35 E.T.R. (3d) 98 [Doucette];Tomlyn v. Kennedy, 2008 BCSC 331, 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53, 21 E.T.R. (3d) 285; P.S.G. v G.G. Estate, 2005 BCSC 1855;

Ryan.

[125]     The comments of Donald J.A. in Gray in addressing the moral claim of an adult child in a WVA claim are apposite in this case:

[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 claims to a 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 or material way; the will was his last opportunity to do right by his son.

 

Vancouver Unfair Will Estate Disputes Lawyers Warning

Strict deadlines apply because your wills variation lawyer must file the notice of civil claim in a BC Supreme Court registry within 180 days (roughly 6 months) of the date of issuance of an estate grant, grant of administration or resealing grant. Vancouver Unfair Will Estate

Disputes are emotionally draining so having one of our skilled estate dispute lawyers helping you resolve matters can really help. Call us toll free at 1-877-602-9900.