By Ian Giroday
One of the most common fact patterns we see in our wills variation practice is a disinheritance or unfavourable treatment of an adult child in a will on the basis of an estrangement from their will- making parent.
In fact, we often see a written explanation by the will maker, sometimes directly in the will and sometimes in a separate document, that his or her decision to disinherit or unfavourably treat a child under the will is on account of a lack of relationship with that child. Sometimes the lack of relationship commences with a marital breakup of the parents when the child was young. Sometimes it is on account of the child being born out of wedlock and/or being raised by other family members for some reason. The lack of relationship may arise later in life for a variety of reasons. We have seen many different fact patterns for a lack of relationship between an adult child and parent.
A long term estrangement or a bad relationship with a will-making parent is not necessarily fatal to a wills variation claim brought by an adult child. There are many decisions from the Supreme Court of British Columbia and the British Columbia Court of Appeal where a wills variation has been ordered in favour of an adult child in this situation. Where an adult child seeks a wills variation where there has been a long-term estrangement or otherwise remote relationship with the will-making parent, the Court will assess the evidence presented to it and make a determination as to why the relationship was not good or non-existent. If the fault for the poor relationship lies mainly or even partially with the parent, there is a good chance that the court will order a variation of the will, depending on such other factors as the size of the estate, whether there is a surviving spouse and the relative financial well-being of any surviving spouse and children. If, on the other hand, blame for the poor relationship lies wholly with the adult child, a variation of the will is much less likely.
In one important case in this area, an adult child who was estranged from his father for most of his life and who received virtually nothing under his deceased father’s will obtained a court ordered variation to receive 30% of his father’s estate, the other 70% going to his siblings. Of note is that this outcome was obtained on appeal, the trial judge having dismissed the claim for a variation on the basis that, because the father and child had nothing to do with each other for most of the child’s life, the father’s obligation to provide for the child under his will was negligible. The Court of Appeal, however, found that the trial judge failed to take into account, and accept, the child’s explanation for why he had no relationship with his father.
The father’s marriage to the child’s mother ended when the child was a baby. The child was raised by his mother and he only saw his father once in his entire childhood after the marital breakup. Financial support from the father to the mother for the child was limited and sporadic. As a young adult, the child worked for his father for a few months until he was laid off for lack of work. He had to pursue an Employment Standards Branch complaint to get his last pay cheque from his father. With the exception of a short telephone conversation years later, there was no further contact between them. The child explained the lack of relationship as follows:
“I did not go out of my way to establish a relationship with the Deceased because I could not see that he was interested in one. He had shown no interest in me while I was a child. When we finally did establish contact, he tried to take advantage of me financially. I feel the Deceased made no effort to have a relationship with me, to provide for me, to act as a father should act towards his child.”
In determining that the trial judge erred in not ordering a variation of the will, the Court of Appeal stated:
“I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the claim to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator [the will making father] gave the appellant [son] virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.”
Where a will maker provides a written explanation for disinheriting or unfavourably treating a child under his or her will, the Court will consider and determine whether the explanation provides valid and rational grounds for the disinheritance or unfavourable treatment. In a recently decided case, the will making father provided no inheritance to his son with the explanation in paragraph 5 of the will that “I have had limited contact and have not seen him for over 20 years.” This case also involved a marital breakup when the son was an infant. After the breakup, the mother had custody of the son and the father only saw his son on a few occasions while he was an infant and only spoke with him on the phone occasionally after that, with the son initiating most of the calls. The son abandoned attempts to have a relationship with his father nearly 20 years before the father died.
The Court varied the father’s will to provide the son with approximately 55% of the estate. The Court found that the father was responsible for the estrangement, stating:
“I conclude that the testator [father] turned his back on the plaintiff [son] from an early age. Such efforts he made over the years to care for his son or provide him with material or emotional support were miniscule. Most of the effort to keep any relationship alive was made by the plaintiff.”
The Court absolved the son from his giving up trying to have a relationship with his father.
“The plaintiff [son] has a strong moral claim to a share of the testator’s [father’s] estate. This claim is undiminished by the plaintiff’s decision….to abandon his attempts to get closer to his father. The Plaintiff had come to the conclusion that his father did not love him and wanted nothing to do with him. I do not blame him. The testator did almost nothing to lead him to think otherwise. It was the only rational conclusion for him to have drawn from a lifetime of experience.”
Not surprisingly, given the Court’s findings of fact cited above, it did not accept the father’s explanation in his will for disinheriting his son as valid or rational:
“In my judgment, the testator [father] cannot resort to his indifference to his parental responsibilities in life as a justification for avoiding his moral obligations to his only son in death.
Yet this is precisely what the testator attempted to do in paragraph 5 of the will. In my view the statement made in this paragraph gives neither valid nor rational grounds for disinheriting the plaintiff. The words set out in paragraph 5 are superficially true, but they portray only a fraction of the whole truth.
…I am not limited to the testator’s cryptic and incomplete narrative of his relationship with his son. I must look at the whole picture.
Having done so, I am strongly persuaded that this is a case in which the testator abandoned his son from an early age and had a strong moral obligation to attempt to make up for his omissions in his will.”
What can we take from these and other cases on point?
1. An estrangement or poor relationship between parent and adult child is not, in and of itself, a basis for a disinheritance of the child by the parent.
2. A court will consider and determine the reason(s) for the estrangement or poor relationship. If the fault for the lack of or poor relationship rests wholly or partially with the parent, a variation of the will is likely to be ordered.
3. In fact, where an estrangement or poor relationship is on account of the parent’s abandonment or neglect, this may increase the moral obligation on the parent to provide for his or her child under their will, it being the last chance to do right by their child.
4. A will making parent’s explanation for a disinheritance will not be accepted at face value. The explanation must be valid and rational, in effect, accurate, true and an appropriate reason in light of contemporary values and expectations.