If you have been left out of your parent’s will or not treated equally when compared with your siblings, it may be open to you to bring a wills variation claim, asking the court to change the will in your favour after your parent’s death. However, as the court’s decision in Kong v. Kong, 2015 BCSC 1669 demonstrates, there are circumstances where the BC courts will uphold the decision of a parent to disinherit a child.
Facts leading to father’s decision to disinherit some of his children
Mr. Kong had seven children, all of whom were adults when Mr. Kong died in 2012. In his will, Mr. Kong left the majority of his estate to his youngest son Jackson. Four of the disinherited children (Matthew, Tak-Shing, Jack and Tak) commenced wills variation proceedings, arguing that their father’s will should be varied in their favour. The four sons said they had a good relationship with their father and that there was no valid reason for their disinheritance. As the sons were grown children to whom no legal obligation was owed, the case focussed on the existence of any moral obligation.
Estrangement may extinguish moral obligation
In accordance with the leading case on wills variation claims (Tataryn v. Tataryn Estate), moral obligations must be viewed in light of society’s reasonable expectations of what a judicious parent would do in the circumstances, by reference to contemporary community standards. A parent’s moral obligation may be extinguished in situations where there has been estrangement, misconduct by adult children, or where those children already received adequate provision in their lifetimes. The moral obligation does not require a parent who has been rejected by a member of his or her family to ignore the rejection, nor does it require that all family members be treated equally.
Valid and rational reasons for disinheriting grown children
When considering a BC wills variation claim, the court examines the reasons an adult child was disinherited to determine if they were “valid and rational.” The onus is on the child challenging the will to establish the reasons are neither valid nor rational. Validity requires the reasons be based on true facts, and rationality refers to a logical connection between the disinheritance and the reasons stated for it. The reasons for disinheritance need not be justifiable, meaning that the court need not agree that the reason was a good or sufficient reason for disinheritance.
Analytical dilemma in BC wills variation claims
If a parent’s reasons for disinheritance are valid and rational, does that also mean they are determinative of what a fair and judicious parent would do? It is difficult to reconcile the subjective “valid and rational reasons” framework with the fundamental principles of Tataryn Estate (i.e., that moral obligations must be assessed objectively from a standpoint of what a judicious parent would do in the circumstances, by reference to contemporary community standards). There are a variety of factors which are relevant to determine the existence of a parent’s moral obligation to an independent child, and to be sure, the parent’s intent is of primary importance. But it is not the only factor.
Stated reasons for disinheritance
The disinherited sons in Kong v. Kong attempted to push the subjective approach to its extreme. There was no statement in the will as to why Mr. Kong was disinheriting all of his children except Jackson. The four sons argued that only evidence as to why their father disinherited them was contained in the notes and recollection of their father’s lawyer, made when he was preparing the contested will. That scant evidence indicated that Mr. Kong told his lawyer that he wished to disinherit the children who didn’t “visit often” and who “don’t care about him.” This, the disinherited children argued, was insufficient reason for being left out of their father’s will.
Subjective intent is part of the court’s objective inquiry
Madam Justice Sharma rejected the wills claimants’ argument that the court was limited only to what Mr. Kong said to his lawyer in preparing his will. The court’s analysis is not to be limited to the will-maker’s expressed (i.e., subjective) reasons, as this would exclude important evidence about the will-maker’s relationship with his grown children. To limit the evidence to express statements of the will-maker would be a further step away from the Tataryn Estate approach. As such, Madam Justice Sharma considered Mr. Kong’s statements, but also made an objective inquiry into the relationship between the father and each of the disinherited children, referring, as necessary, to community standards.
Good reason to disinherit two of the sons
Balancing all of the factors, the court refused to alter the will with respect to Matthew and Jack. These two sons had a bitter, acrimonious relationship with their father which included arguments over property, constant squabbling, and hotly contested litigation in which the sons opposed their father’s appointment as committee for their mother, who was diagnosed with dementia in 2006. Matthew and Jack had been estranged from their father for several years prior to his death, and they were to blame for that estrangement. In light of those facts, Mr. Kong had no moral obligation to provide for them and therefore no variation in his will was justified on their behalf.
Wills variation claim allowed in relation to other sons
The analysis produced a different result for Tak and Tak-Shing. Matthew and Jack were clearly the instigators of the litigation and they had essentially recruited Tak and Tak-Shing to co-operate. The court was satisfied that Tak and Tak-Shing had a comparatively good relationship with their father, and that both had maintained regular contact with their father after the rift caused by the litigation. Mr. Kong did not have sufficiently valid and logical reasons to disinherit Tak and Tak-Shing. Balancing adequate provision for them against Mr. Kong’s wish that Jackson receive the majority of his estate, the will was varied to provide each of them a modest 5% share of their father’s estate.
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