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While BC has some of the most sympathetic laws in all of Canada for people who have been unfairly disinherited, parents can disinherit their children from their will if they have valid and rational reasons. Many provinces allow will-writers to completely disinherit their adult children for minimal reason, giving the will-writer nearly complete, undisputed testamentary autonomy in their will. However, BC courts regularly vary unfair wills that are guilty of disinheriting children for invalid reasons.
When first hearing this, people are left wondering, why do BC courts have the ability to modify someone’s will? If the will is meant to be the writer’s final requests, why would the law allow that to be changed? The answer is because in BC a will is meant to be the final opportunity to do right by the will-writer’s family members. If the testator fails to do this and leaves a child without adequate provision for their proper maintenance and support for their life, it could leave them requiring financial aid in the future. That financial aid likely comes from government services such as Income Assistance, which means the tax-payers end up being burdened because the will-writer chose to disinherit their child.
BC courts will always recognize that each person has a right to do what they want in their will – testamentary autonomy. However, this freedom has to be balanced with the best interests of society as a whole. That’s why BC does not allow disinheritance without valid or rational reasons.
According to the Wills, Estates and Succession Act:
“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.”
If the will-writer fails to make adequate provision for proper maintenance or support, the courts have the ability to change the will to reflect what they deem to be adequate, just and equitable in the circumstances. This could include large modifications of the main provisions of a will.
To properly disinherit an adult child or a spouse, the will-writer must have reasons that are:
If the reasons for disinheritance are not valid, rational and consistent with modern Canadian values, the will can be modified.
One of the most common reasons for disinheritance is estrangement. Estrangement is when two people are not on friendly terms and refuse to communicate with one another. If a child is the primary determinant in the estrangement, this is typically a valid and rational reason for a parent to disinherit them. Like all reasons for disinheritance, it’s largely dependent on the individual situation as to whether the reason is rational or not. Courts will deem a reason as rational if a reasonable parent could choose to disinherit for the reason given. This is not to be confused with saying a reasonable parent would always choose to disinherit for the reason given.
The case of Holvenstot v. Holvenstot (2012) exemplifies a case where disinheritance was allowed in the courts after a son asked the BC Supreme Court to vary his mother’s will because he had been disinherited. A number of purported reasons for the disinheritance were addressed by the court, some of the main reasons shown to be true were:
Given that the above facts were determined to be true, the son had to prove that these reasons were not rational. In the end, the judge ruled that the reasons were rational as they were logically connected to the disinheritance. The courts ruled that a reasonable parent could make the decision to disinherit their child in the above circumstances. Additionally, none of these reasons for disinheritance violated modern Canadian values.
As a parent who wants to disinherit a child from their will, you should prepare a document detailing exactly your reasons for the disinheritance. Having specific details and examples will help to make it understood by the courts why the child is being disinherited. If you have a reason that is valid, rational and is consistent with modern Canadian values, the disinheritance is unlikely to be overruled.
If you’re concerned about disinheritance in your estate planning – contact an experienced estate lawyer today. We can ensure your wishes are honoured and your will won’t be modified by the courts.