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BC Wills Variation Claim Nets Increased Inheritance for Only Child

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  • BC Wills Variation Claim Nets Increased Inheritance for Only Child

In BC, if a child is disinherited by a parent or left only a modest benefit, that child can bring a wills variation claim. The parent’s reasons for making the disposition will be scrutinized by the court. Sometimes, a parent will leave behind a detailed, written statement explaining exactly why they decided to disinherit a child, leave only a modest benefit, or treat siblings unequally. But, as Schipper v. Schipper Estate, 2010 BCSC 1067 demonstrates, even a parent’s explicit reasons may not rule the day in a BC wills variation claim.

Only child given small share of estate

Johanna Schipper was the only child of Marinus and Hendrikje. Marinus died January 6, 2008 and Hendrikje died the next day. Johanna was 46 years old when her parents died. Marinus and Hendrikje had both made wills on January 4, 2008, just two days before Marinus died. The wills were mirror images of each other. Each of them left the entire estate to the other, and in the event that the other did not survive the other for 30 days, the residue of the estate would be divided as follows: 25 percent to Johanna, 50 percent to their nephew Jacob, and 25 percent to their nephew Anthony. The value of their estate was approximately $900,000. Johanna was a doting daughter and had a close, loving relationship with both of her parents for her entire life. As an adult, she lived in Alberta but visited her parents about four times per year. Jacob and Anthony were the Schippers only other living blood relatives. Jacob lived in BC and provided assistance to the Schippers, particularly in their later years when Marinus’ health declined.

Daughter’s wills variation claim

Johanna brought a wills variation claim. Because all or substantially all of her parents’ assets were in joint tenancy, upon the death of Marinus, his property passed automatically by right of survivorship to Hendrikje. Therefore, in the circumstances only the will of Hendrikje was operative. At the time Hendrikje and Marinus made their wills in 2008, they also each signed a statement that read as follows:

I have considered making a larger provision and have decided not to because:

Johanna has not visited me for over three years.

Although her father, Marinus Schipper, is gravely ill, Johanna is showing no interest in either of us.

I verily believe that Johanna is not in need of my assistance.

It is my earnest wish that Johanna receive only 25 percent of the residue of my estate.

I wish my nephew, Jacob De Lange, to have the benefit of 50 percent of the residue of my estate and my nephew, Anthony Marinus Schipper, to have the benefit of 25 percent of the residue of my estate as per the terms of my will of even date.

The solicitor who prepared the wills and written statement gave evidence. Apparently, both Marinus and Hendrikje told him that they wanted to make new wills which would leave nothing to Johanna. The Schippers reluctantly agreed to leave their daughter a 25-percent share, on the basis of the solicitor’s advice that disinheriting her altogether would very likely lead to estate litigation.

Subjective reasons for disinheritance must also be objectively sufficient

To constitute “valid and rational” reasons justifying disinheritance, the subjective reason must be based on true facts and the reason must be logically connected to the act of disinheritance. But true and logically-connected reasons of a will-maker must also be passed through the further objective test of whether the disinheritance does or does not meet the standard of what a judicious parent, aware of contemporary community standards, would do in the same circumstances.

Reasons for reduced inheritance were not valid and rational

In Schipper, the court concluded that the reasons expressed by Hendrikje for making the dispositions set out in her will were not valid and rational, but rather an unfair overreaction to a perceived lack of interest by Johanna. The following evidence supported Johanna’s successful claim to vary the will in her favour:

  • The Schippers had made wills in 2006 which left 50 percent of the residue to Johanna and 25 percent each to their nephews, Jacob and Anthony. Nothing actually changed in relation to the moral obligations towards Johanna between August 2006 and January 2008 when the final will was made, other than the Schippers’ perspective. What changed is the degree of bitterness and disappointment the Schippers felt towards Johanna. The Schippers were accustomed to an extraordinary degree of attention and devotion from Johanna. When that diminished slightly after Johanna moved to Hawaii with her husband (a move the Schippers expressed their support for), they were very disappointed.
  • The major reason for Hendrikje deciding to reduce provision for Johanna was the idea that Johanna was “showing no interest in either of us”, despite Marinus’s grave illness. On its face, that statement was clearly not true. This was not a case of parent-child estrangement. Johanna called her parents weekly, right up until their deaths and enjoyed a positive, loving relationship with both parents. Johanna still visited them after the move to Hawaii, but only once or twice per year instead of four times per year. The fact that their daughter’s attention diminished slightly at the same time as Marinus’s health was declining was particularly disturbing to the Schippers, but the Schippers kept the seriousness of Marinus’s health a secret from Johanna. She would have come to visit had she known her father was gravely ill.
  • Johanna was their only child. She was a faithful, loving and dutiful child, notwithstanding the perceived slight chill in the relationship over the final few years. There were no other claimants to whom a moral duty was owed. The only other person with a strong competing claim was Jacob, who was of genuine help to the Schippers, especially in their later years. However, the gratitude of the Schippers to Jacob, while no doubt genuine, was magnified and distorted by their bitterness and disappointment with their daughter.
  • Hendrikje’s written statement also said that she believed her daughter was not in need of financial assistance. The reality, however, was that Henrikje had very little factual information about her daughter’s financial situation. The reference to her daughter owning three or four houses in Calgary was no longer accurate. In fact, by the time the 2008 will was made, Johanna’s financial circumstances were in precipitous decline. The business she shared with her husband had been shut down. She was out of work and had been for some time, living off the proceeds of the sale of the Calgary properties.

The Schippers perception of the situation was not accurate or fair to their daughter. The explicit reasons expressed for making the dispositions set out in the will were not rational and did not provide a proper basis to support the provision made, which the court found was inadequate. The will was varied so that Johanna received a 50 percent share of the residue of the estate.

Take home point on wills variation claims by disinherited children  

The reasons for making a disposition in a will must be rational in the sense of being logically connected to the disposition set out in the will, based on actual fact, and also objectively sufficient. The trend in BC wills variation cases is for the court to reject objectively insufficient reasons for disinheritance if the reasons are simply not rational.

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