In this case, the BC Court of Appeal considered a trial judge’s discretion in varying a will under s. 2(1) of the Wills Variation Act. In Bell v. Roy Estate (1993), The deceased was the mother of three children. Her husband died before she did, and before his death both of their wills left their estate to the surviving spouse or, if there was no surviving spouse, divided the estate between the couple’s two sons. No provision was made for their third child, Barbara.
Barbara was temporarily estranged from the parents when at the age of 20 she had a child out of wedlock. Three years later she eloped with her husband, whom the parents did not like. Later on the youngest son, Gordon, began to exhibit antisocial and criminal behaviour, and he was convicted of murder in the 1970s.
The parents were angered by Barbara’s unwillingness or inability to contribute to Gordon’s legal expenses. It appeared on the evidence that Barbara saw little of her mother during the mother’s later years, while the oldest son, Stuart, and his family provided her with care and attention.
Less than a month before she died, the mother revoked her earlier will and made a new one in which the residue of her estate was left to Stuart alone. She stated in this will that she had no comfort or support from Barbara, who only contacted her sporadically over the years. There was no reference in the will to the financial circumstances or relationships between the mother and daughter, and little other evidence regarding their finances was put before the court.
Barbara brought an action to vary the will, which was dismissed at trial. The Court of Appeal noted that the usual approach to an application to vary a will is for the court to determine whether the testator has made adequate provision for the proper maintenance and support of the dependants and, if such provision is lacking, to determine what is adequate, just and equitable in the circumstances. In this case, the first step was not applicable because no provision was made for Barbara. The Court of Appeal considered that no jurisprudence goes so far as to say the disinheritance of an adult child gives them the right to have their parent’s will varied.
The Court held that the trial judge was correct in finding that if the reasons the deceased had in mind when she disinherited Barbara were confirmed, that was enough to support the will. The appeal was dismissed.
An adult child may be disinherited if the parent’s reasons are sustained.
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