A spouse or child who is left out of a will can bring a wills variation claim, which requires the court to consider the reason for disinheritance. Estrangement is a commonly cited reason to disinherit, but where the estrangement is the fault of the will-maker, the court may be more inclined to reject it as a sufficient reason for the disinheritance and allow the wills variation claim. In LeVierge v. Whieldon, 2010 BCSC 1462 a BC woman who was left out of her mother’s will brought a wills variation claim, pointing to the estrangement between herself and her mother as the reason she was left out of the will. The daughter argued that the estrangement was not a valid and rational reason justifying her disinheritance. The BC court did not accept the daughter’s characterization of her relationship with her mother and found that the primary reason for the disinheritance was in fact the daughter’s own conduct. The evidence satisfied the court that the daughter was disinherited for valid and rational reasons, and further, that the mother’s decision to disinherit her daughter was consistent with what a judicious parent would do in similar circumstances.
Disinherited daughter’s BC wills variation claim
Edith Whieldon died suddenly and unexpectedly on May 6, 2008, at the age of 76, leaving an estate worth $1.2 million. In her Will, Edith left the residue of her estate to her sons, David and Russell. She made no provision whatsoever for Jane, her only daughter. Edith and Jane had been estranged for two years prior to Edith’s death. Jane’s explanation for this period of non-communication was that she believed that Edith was upset because Jane excluded Russell from a dinner that Jane hosted in 2006. In her wills variation claim, Jane suggested that Edith’s decision to disinherit her was Edith’s disapproval of Jane’s decision not to invite Russell. Jane submitted that this reaction was neither valid nor rational. Jane’s evidence was that she and her mother had a loving if somewhat tumultuous and turbulent relationship.
Daughter’s moral claim to mother’s estate
As an independent adult, Jane had no legal claim to her mother’s estate. The sole question on her wills variation claim was whether she had established a moral claim to a share of her mother’s estate. The net value of Edith’s estate was substantial, therefore Jane should be entitled to share in the estate unless there were circumstances which negated the existence of a moral obligation to her. Circumstances that will negate the moral obligation of a will-maker are “valid and rational” reasons for disinheritance. That is, the court will consider whether the decision to disinherit was:
- Valid, meaning it was based on true (not misapprehended facts); and
- Rational, in the sense that there was a logical connection between the reason and the act of disinheritance.
Under BC’s doctrine of valid and rational reasons, there is no requirement that the reason be justifiable, which means that the court does not need to agree that the subjective reason was good or sufficient.
Tension between subjective reasons and objective standards
As we have been discussing, there is a tension arising from the application of the doctrine of valid and rational reasons within the framework of “adequate and proper maintenance and support” as set out in Tataryn v. Tataryn, the leading case from the Supreme Court of Canada on wills variation claims. There is a growing trend in BC toward rejecting objectively insufficient reasons on the basis that they are simply not rational, even if they are logically connected to the disinheritance. In other words, it will be appropriate for the court to intervene, even if the will-maker acted on true facts and there is a logical connection between the decision to disinherit and those facts, if the result of such disinheritance would be inconsistent with an objective standard of what a judicious parent would do in these circumstances. An illustration of this principle is Peden v. Peden 2006 BCSC 1713, in which the court concluded that a judicious parent applying contemporary community standards could not be said to be acting in accordance to his moral duty when he discriminated against one of his children on the basis of that child’s sexual orientation.
Daughter was to blame for the estrangement
The trend in the case law did not benefit Jane’s wills variation claim. Jane’s evidence of the reason for her disinheritance was not credible. The evidence of other family members and entries in Edith’s diary painted a very different picture of the mother-daughter relationship. There was significant conflict between Edith and Jane throughout Jane’s adult life. For long periods of time Jane denied Edith access to Jane’s children and Jane antagonized and verbally abused her mother on numerous occasions. The reality was that Jane had only minimal conduct with Edith throughout her adult life and in particular in the 10 year period prior to Edith’s death and that the principal reason for the lack of contact was Jane’s attitude and conduct towards her mother.
Real reason for the daughter’s disinheritance
While Mr. Justice Sewell had no doubt that Jane’s treatment of Edith over many years coloured Edith’s reaction to these dealings, the real reason which led Edith to disinherit Jane related to Jane’s receipt of substantial benefits from her father, to the exclusion of her brothers. Mr. Justice Sewell found that the principle reason Edith disinherited Jane was Jane’s purchase of a Vancouver home in her own name using a $160,000 deposit originating from her father (Edith’s ex-husband, Ronald). Jane orchestrated the purchase using all of her father’s savings, and then lived in the home rent-free, as the monthly mortgage payments and taxes for the property were paid from Ronald’s pension. The net result of these arrangements was that Jane obtained the benefit of Ronald’s personal, albeit modest, fortune, thereby leaving Ronald in a position where he had nothing to bequeath to his other children on his death (in other words, David and Russell received nothing when their father died because of Jane’s actions). Jane’s disinheritance was valid, rational, and consistent with an objective standard of what a judicious parent would do in these circumstances. Her wills variation claim was dismissed.