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BC Wills Variation: Considering the Reasons for Disinheriting Family Members


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  • BC Wills Variation: Considering the Reasons for Disinheriting Family Members

Can a BC will-maker disinherit a family member? Can parents treat their adult children unequally in their will, leaving a nominal gift to one child and the lion’s share of their estate to another? The answer is not always straightforward. When it comes to consideration of a will-maker’s reasons for disinheriting or treating beneficiaries in an unequal manner, inconsistency has arisen between the current analytical framework established by the BC Court of Appeal and the overarching principles of wills variation law set out by the Supreme Court of Canada. Today’s post will be the first in a series examining the issue of disinheritance in BC. We will start with BC wills variation basics and build from there.

BC wills variation basics

Section 60 of BC’s Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”) is the key provision that empowers the Court to vary a will. It states:

60  Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

In accordance with WESA s. 60, only the surviving spouse and children of the will-maker may apply for a variation of a BC will.

What is “adequate, just and equitable” provision in a will?

WESA s. 60 refers to “adequate, just and equitable” provision – but what does that mean? Tataryn v. Tataryn Estate is the leading case and the governing authority on BC wills variation. In the Tararyn case (see here for our BC estate litigators discussion of the facts and outcome), the Supreme Court of Canada set out the following principles:

  • On an application to vary a will the Court must ask itself whether the will makes adequate provision for the claimant and if not, order what is adequate, just and equitable, in the circumstances. These are two sides of the same coin.
  • The phrase “adequate, just and equitable” must be viewed in light of current societal norms, of which there are two: legal obligations and moral obligations.
    • Legal obligations are those which the law would impose on a person during his or her life were the question of provision for the claimant to arise.
    • Moral obligations are based on society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.
    • Legal obligations take precedence over moral obligations.

Ultimately, testamentary autonomy must yield to the interests of spouses and children, but only to the extent necessary to provide what is adequate, just and equitable in the circumstances.

Considering the reasons for disinheritance or unequal division of an estate

The will-maker’s reasons for disinheritance or for unequal division among beneficiaries may factor into the Court’s determination of what is “adequate, just and equitable” in BC wills variation proceedings. Section 62 of WESA permits the Court to accept evidence regarding the will-maker’s reasons for making certain gifts in the will or for making less than adequate provision for the wills variation claimant. In some cases, the will-maker’s express or inferred reasons may have the effect of negating any moral obligation owed by the will-maker. The approach taken by BC Courts in relation to a will-maker’s reasons for disinheriting or providing a modest benefit only to a child starts with consideration of the Court of Appeal decision in Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213, 48 E.T.R. 209 (C.A.) (“Bell”).

Doctrine of “valid and rational reasons”

In Bell, the will-maker left a will under which she bequeathed a small gift to one adult son, nothing to her adult daughter, and left the lion’s share of her estate to her other adult son. Contemporaneously with making her will, the will-maker wrote a separate letter purporting to explain the unequal treatment of her children, and in particular the disinheritance of her daughter. The daughter’s application to vary her mother’s will was refused. In Bell, the Court of Appeal held that where financial need is not a factor, if the court finds that the will-maker’s reasons purporting to explain a disinheritance are valid and rational, the will-maker’s moral duty in respect of that child is negated. The Court held that the burden then shifts to the wills variation claimant to show that the reasons acted upon by his or her parent were false or unwarranted. The Bell analysis was applied in Kelly v. Baker (1996), 82 B.C.A.C. 150, 15 E.T.R. (2d) 219 (C.A.) (“Kelly”), another case in which the BC Court of Appeal concluded that the will-maker had valid and rational reasons for disinheriting the claimant. The Court in Kelly stated that the will-maker’s reasons for disinheriting a child need not be “justifiable” and that the law merely requires that the reasons are valid, meaning based on fact, and rational in the sense that there is a logical connection between them and the act of disinheritance.

Inconsistency between BC case law and Tararyn?

As discussed at the outset of this post, the fundamental principle of Tataryn is that a will-maker’s moral duty must be assessed objectively from a standpoint of what a judicious parent would do in the circumstances, by reference to contemporary community standards. A thorny issue arises from the model of inquiry endorsed by Bell and followed in Kelly (i.e.,the doctrine of valid and rational reasons), as that approach effectively precludes an assessment of whether the will-maker’s reasons are objectively justifiable from the standpoint of the contemporary judicious parent of Tataryn. If the decisions of Bell and Kelly mean that the applicable test is whether a will-maker has valid (i.e. factually true) and rational (i.e. logically connected to the disinheritance) reasons for disinheriting a child, even where the reasons are unworthy of an objectively judicious parent based on contemporary standards, then they are difficult to reconcile with the fundamental precepts of Tataryn and the search for contemporary justice in the circumstances.

Check back for further analysis of reasons for disinheritance in BC

How can a will-maker’s subjective reasons for disinheritance negate a will-maker’s moral obligations if those reasons are not objectively justifiable? Check back for upcoming posts from our BC estate litigation team which will delve further into this and other issues related to disinheritance in a will.

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