A Will can be a last opportunity for a parent to do right by a child. In a recent BC estate matter, a father instead used his Will to explicitly disinherit his twin daughters, denouncing them as illegitimate and instructing his executors to fight any attempt by the twins to vary his will. The Court in Jung v. Poole Estate, 2021 BCSC 623 allowed the twins’ wills variation application, finding that the Will was a misguided and ill-conceived attempt to punish the twins for estrangement that was beyond their control.
Father abandons children after birth
Ronald Poole and Celine Leblanc dated but never married. In 1985, Celine informed Ronald that she was pregnant with twins. Ronald raised the possibility of an abortion, but Celine strongly opposed it. The twins, Courtney and Chelsea, were born in 1986. Celine raised the twins as a single mother with no involvement or financial help from Ronald. Celine died unexpectedly when the twins were 4 years old. Her Will named her close friends (the Fandricks) to be the twins’ guardians.
Father abandons children for a second time
After Celine’s death, Celine’s mother sought custody of the twins. A bitterly contested custody trial took place. Ronald met the twins for the first time in 1990, shortly before the custody trial. Ronald took an active role in the proceedings, but the judge ultimately determined that it was in best interests of the children that the Fandricks become the twins’ custodial parents. Recognizing that Ronald was in the process of establishing a meaningful relationship with the twins, the trial judge made an order providing Ronald with generous parenting time. Unfortunately, after the custody trial, Ronald disappeared from the twins’ lives. He never saw or spoke to the twins again, effectively abdicating any responsibility he had as their father. His behaviour was completely contrary to the position he took at the custody trial, but entirely consistent with his pattern of neglect before Celine’s death. The Fandricks raised the twins to adulthood with no assistance from Ronald. Their contact information easily available to Ronald, but he never contacted them, nor did he provide his information so that the twins could contact him.
Father disinherits children
In 1995 (five years after he lost the custody trial) Ronald prepared a Will explicitly disinheriting his nine-year-old twins, referring to them as “my illegitimate children.” He prepared a new Will in 2006, again explicitly disinheriting the twins from any part of his estate and including specific instructions to his executors take whatever steps were necessary to strenuously oppose any effort the twins might make to vary the Will. Ronald died in 2017 leaving an estate valued at $879,174.42. He left the entirety of his estate to his friends, Bernard Sabiston and Ian Toombs, who were also named as executors. In addition, Mr. Toombs received $138,974.85 that did not form part of Ronald’s estate as the named beneficiary of an RRSP and a joint owner of two TFSA’s owned by Ronald.
Children seek to vary the Will despite estrangement
Ronald had been married twice (once before meeting Celine and once afterwards), but he had no children with either wife. The twins—who were Ronald’s only offspring—applied to vary their father’s Will under the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (WESA s. 60). The key issue was whether Ronald had a moral obligation to provide for his adult children in his Will. The general rule is that if the size of the estate permits, some provision for adult independent children should be made, unless there are circumstances which negate the moral obligation. Estrangement is a factor to be considered in this regard. An adult child’s decision to have no contact with a parent can be a rational ground for disinheritance. Indeed, estrangement was the reason Roland gave for disinheriting the twins. At the time of his death, the twins were 31 years’ old and neither he nor the twins had made any significant attempt to contact the other. The key, however, is that the validity of the parent’s reasons for disinheriting an adult child should be based on fact. The rationality of the reasons must consist of a logical connection between the facts and the act of disinheritance.
Disinheritance driven by “sour grapes”
The court held that Ronald’s rationale for disinheriting his children was invalid, irrational, and not based on what a reasonable parent judged by contemporary community standards would or should have done. The period of estrangement between the custody trial and Ronald’s death was due almost entirely to Ronald’s anger and bitterness towards the outcome of the trial. At that time, the twins were four years old and incapable of estrangement from their father. Instead of blaming himself for four years of abdicating his responsibilities as the twins’ father and instead of following through with his statements at the custody trial that he wanted to be part of the twins’ lives, he blamed the twins for the estrangement. The twins, on the other hand, had valid and rational reasons for not tracking their father down during his lifetime. Ronald made it clear from his actions that he did not want them in his life. The twins knew he had wanted to abort them. They were hurt that Ronald had not bothered to see them even once after they were born, met them for the first time shortly before the custody trial, started to develop a relationship with them and promptly deserted them afterwards. The twins feared that Ronald would simply reject them again if they were ever successful in tracking him down.
Will varied in favour of disinherited children
Justice Weatherill concluded that Ronald abandoned the twins from the outset and he had a strong moral obligation to attempt to make up for his desertion of them in his Will. Messrs. Sabiston and Toombs’ “moral claim” to the estate, which they technically did not have, paled by comparison to that of the twins. Given that Ronald completely failed in the moral obligation towards his children, it was appropriate to vary the Will to make adequate, just and equitable provision for the twins while at the same time interfering as little as possible with Ronald’s autonomy and expressed intentions. The Will was varied so that each twin received 35% (slightly over $300,000 each) and Mr. Sabiston and Mr. Toombs each received 15% of the residue.
Bottom line on estrangement as grounds for disinheritance
Indifference to parental responsibilities in life cannot be justification for avoiding moral obligations to children in death. The modern judicial trend indicates that the court will enquire into the role played by the parent in the estrangement or relationship breakdown. If the lack of a relationship between a parent and child was the parent’s fault, as opposed to mutual estrangement, it will likely not negate a parent’ moral duty, and may even enhance it.