Family, Estates & Trusts 



Disinherited Son Unsuccessfully Challenges Mother’s Will

In Chang Estate v. Chang, 2013 BCSC 976, aff’d 2014 BCCA 28, a mother prepared a will that disinherited her son – he challenged his disinheritance, but the court determined that the mother was mentally competent and acting freely when she made her will. She intended to disinherit her son and had valid reasons for excluding him.

In an earlier post, I discussed the do’s and don’ts of adding a beneficiary to a will. But what about the opposite situation, when a will disinherits a person as in the Chang Estate case?

While the outcome of each case depends on the circumstances, the Chang Estate case in helpful because it shows the kind of facts and issues the court looks for when disinheritance is challenged.

The situation: Bad blood between parents and son

Mrs. Chang was the mother four adult children. Her husband died in 2001. When Mrs. Chang died in 2007 at the age of 98, a residential property in Surrey was her only significant asset. The property was originally purchased in 1988 and registered to herself, her husband, and her oldest son as joint tenants. They rented the property out and their son kept the rental proceeds.

Throughout the 1990s the relationship between the son and his parents soured and in 1998 the parents severed the joint tenancy, leaving the son with a 1/3rd interest as a tenant in common. Mrs. Chang and her husband were heartbroken by their son’s ungrateful attitude towards them. They felt that they gave so much to their son, who in turn treated them very disrespectfully. Mrs. Chang found this very disappointing and distressing.

Will and codicil disinheriting the son

In her will of 2000 Mrs. Chang left just $10 to her son, with the remainder of her estate to be divided between her three other children. Mrs. Chang specifically stated in her will that the minimal bequeath to her son was because of both their poor relationship and the financial assistance she had provided him in the form of his interest in the Surrey property.

In a 2005 codicil, Mrs. Chang confirmed her reasons for disinheriting her son.

Disinherited son challenges the will

After her death, her son disputed the validity of her will, arguing that there were suspicious circumstances that raised issues of mental capacity, undue influence, and fraud. Basically, his position was (1) that his mother was of advanced age so must not have known what she was doing when she made her will, and (2) that his sister, who was devoted to their mother’s care and named as executrix of the will, must have influenced their mother to disinherit him.

The court looked at all of the circumstances surrounding the preparation of the will and codicil and found nothing suspicious. Although Mrs. Chang was in her 90s when she made the will and codicil, the evidence clearly showed that she was mentally competent and free of any influence from her daughter (or anyone else, for that matter). The will was valid, so the son received just $10 from his mother’s estate.

Facts that the convinced the court that the will was valid

Here are the facts that convinced that court that the mother had the mental capacity, free will, and specific intention to disinherit her son:

  • Mental capacity when the will and codicil were prepared

    • Chang’s primary care physician from 2000 until 2005 provided evidence at the trial. He remembered Mrs. Chang well because she was an intelligent, self-sufficient woman, despite her advanced age. He found her to always be mentally capable and able to independently make decisions about her life.
    • Chang’s adult granddaughter, who visited her grandmother once or twice a week, testified that Mrs. Chang was very independent. Over the years, she never saw any changes in her grandmother’s keen mental capacity.
    • Chang’s daughter explained to the court how “with it” her mother was – Mrs. Chang lived on her own well into her 90s, did her own banking, and could readily converse on news items she read about in the newspaper.
  • No suspicious circumstances surrounding the preparation of the will and codicil

    • The will was prepared by an experienced notary who read it over to Mrs. Chang and ensured she understood what it said. Mrs. Chang came to the meeting with notes in her own handwriting about her wishes for her estate. The will was “duly executed” (which means it was signed by Mrs. Chang and by two witnesses in her presence).
    • The $10 bequest made in the will was confirmed five years later in the codicil, which underscored Mrs. Chang’s intention and independence. The codicil was prepared by a lawyer who also read it over with Mrs. Chang to confirm that she understood it. The codicil was also “duly executed”.
    • Both the notary and the lawyer questioned Mrs. Chang and found her to be firm and clear in her instructions about her wishes for her estate. They were satisfied that she was mentally competent and acting freely.
  • No undue influence or outside pressure

    • While Mrs. Chang’s daughter drove her to the meetings to sign the will and codicil, she did not make the appointments, nor did she stay in the room when her mother was giving instructions and signing the documents. There was no evidence whatsoever that the daughter attempted to influence her mother with respect to her wishes for her estate.
    • A key fact that went against a finding of influence on the part of the daughter: The daughter actually got less of a share than the son who was disinherited, as she had to split the 2/3rd portion of the Surrey property with her two other siblings, while the son got to keep 1/3rd as a tenant in common.
  • The decision to disinherit the son was “rational”

    • Chang’s daughter told the court that just before the will was signed, her mother told her how heartbroken she was by her son’s ungrateful attitude. Mrs. Chang’s statements about her distress and unhappiness over her son clearly showed her state of mind. She had her reasons for effectively disinheriting her son and clearly stated them.

Take home point on challenging disinheritance

Whether a will can withstand legal challenge by a disinherited person always depends on the specific circumstances, including the character of the relationship between the will-maker and the disinherited person. There may be valid reasons for choosing to disinherit an adult child; in such a case, the court will examine all of the evidence to ensure that the will-maker was mentally competent and acting without undue influence or pressure from anyone when preparing the will.

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