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:
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.