Disinheriting your adult children is harder than it looks…at least if you live in British Columbia.
In a recent ruling, a Supreme Court of B.C. judge granted a man’s estranged children 70 per cent of his $1-million estate, despite the fact his will specifically instructed they were to get nothing.
According to the decision, the father had hardly seen his 31-year-old twin daughters since they were born, and blamed them for the failure of the relationship. He wanted his remaining property split between two of his long-time friends, instructing his executor to drain the estate dry before giving in to any legal challenge from his daughters.
However, using provisions from B.C.’s century-old Wills Variation Act, the judge redistributed the estates assets, with 35 per cent going to each of the twins, and the remaining 30 per cent split between the father’s friends.
“[The father’s] rationale for disinheriting the Twins is, I conclude, invalid, irrational, and not based on what a reasonable testator judged by contemporary community standards would or should have done. Indeed, the comments made about the Twins in both wills were unwarranted, cruel, and untrue,” Justice Gary Weatherill wrote in the ruling.
Things are more certain for will-makers in Ontario, where testamentary freedom is a bit more sacrosanct. There are no equivalent variation provisions in our Succession Law Reform Act, which means that judges are far likelier – though not guaranteed – to uphold the wishes of the deceased in court, as long as the claimant was not one of their dependants.
Still, you should think hard before cutting out a person who expects to feature in your will, or at least consider giving them some advance warning.
As I’ve learned in my years of practice, it doesn’t take a huge sum of money to spark a legal dispute over a loved one’s assets – I’ve watched too many families tear themselves apart over bruised egos or perceived favouritism, and the personal slight of disinheritance will be enough to send plenty of people into fight mode.
But testators can often nip these issues in the bud by giving beneficiaries an idea of what they can expect from a will. Even if it’s less than they had hoped, setting realistic expectations ahead of time will take a lot of the heat out of the situation when estate administration begins.
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