In British Columbia, if a person’s will does not make adequate provision for their spouse or their children’s maintenance and support, the deceased’s family members can bring a claim to vary the Will. The Court may order that provision be made for that family member, in a manner that the court determines is “adequate, just and equitable” in the circumstances. The Court will consider the decease’s legal obligations, such as to their surviving spouse or minor children, and their moral obligations, such as to their adult children.
A parent does not have to treat all of their children equally in their Will, but they must have “valid” (that is, factually true) and “rational” (logically connected to the reason for the disinheritance) reasons for their chosen distribution. Even if a parent’s reasons are “valid” and “rational”, the court will still assess the reasons objectively, based on society’s reasonable expectations of what a judicious parent would do in the circumstances.
Our Court of Appeal has recently considered a situation where a testator decided to favour two of her five adult children on the basis that they had provided care and comfort to her prior to her death. She left 85% of her estate to two children, and 5% to each of the other three children. The Court of Appeal found that even though the testator’s reasons were valid and rational, they still fell below the standard of a judicious parent. The Court noted that this was not a case where the three children were disinherited as a result of estrangement or misconduct. Each of the children were dutiful and loving, so the Court could not justify the magnitude of the unequal treatment. In the result, the Court varied the will to provide 60% of the estate to the two children, in recognition of her wishes, and 40% to the remaining three children.
The practical implications of this decision are evident. For example, a testator may choose to disinherit an adult child over a personal disagreement over deeply held beliefs. Those beliefs may be valid and rationale, but may not accord with today’s societal expectations.
If you are considering making a Will, or have been treated differently from your siblings in your parent’s Will, please contact one of our lawyers through our Reception at 250-374-3344, who can advise you on your obligations and your entitlement.