Spite Not a “Valid and Rational” Reason to Disinherit a Child

Wills variation proceedings are often brought about by estrangement, misunderstandings, and hurt feelings within a family. Enns v. Gordon Estate, 2018 BCSC 705 shows how family grudges can lead to disappointed beneficiaries and estate litigation. In Enns, a BC woman brought a wills variation claim after being restricted to a 1% share of her mother’s estate that was worth over $1,000,000. The bulk of the mother’s estate went to two charities, in equal shares. There was no evidence that the mother had any particular connection with either of the charities. There was, however, evidence that the mother’s reasons for essentially disinheriting her daughter were motivated by spite. The daughter’s wills variation claim was allowed and the mother’s will varied so that the daughter received 40% of the residue of her mother’s estate.

Family disputes lead to estrangement

Mary and Albert Gordon were married in 1958. Together they had two daughters: Norma, born in 1958, and Elizabeth, born in 1965. Mary and Albert were strict and controlling parents who tended to hold grudges. As adults, both daughters became estranged from their parents. Elizabeth was estranged from her parents for an almost 15-year period beginning in 1997. Norma was estranged from her parents for a two-year period beginning in 2009. In each case, the estrangement resulted from the daughter borrowing money from the parents for the purchase of a home and the parents placing onerous conditions on the loan. The parents were mean-spirited toward their daughters and openly disapproved of their daughters’ husbands.

Wills made in the midst of estrangement

After a property-related dispute with Norma in 2009, Mary and Albert met with their lawyer to prepare wills. Mary and Albert decided that they would give $10,000 to each of their children and the rest was going to charity. The reason they decided to only give a small amount to Norma was the 2009 fight over ownership of a townhouse. The reason they decided to only give a small gift to Elizabeth was that they had been estranged from her for many years.

Reconciliation after parents’ wills prepared

Albert reached out to the daughters after Mary was diagnosed with cancer in 2011, and the daughters began visiting their parents. By 2012 the daughters had resumed regular contact with both parents. Albert died in 2012. His estate went to Mary. The daughters continued to spend time with their now-widowed mother, helping her with errands and sharing holidays. The past events that caused the estrangements were never discussed. A friend suggested to Mary that she should change her will to reflect that there had been reconciliation with both Norma and Elizabeth since the wills were prepared. Mary refused to change her will, suggesting that the terms were what Albert wanted, and the girls had caused Albert grief. Mary died in 2015, about four years after her estrangements from her daughters ended. Elizabeth died of cancer a few months later. Norma brought a wills variation claim and, as mentioned above, was successful in varying Mary’s will.

Starting point on a BC wills variation claim

A BC will may be varied if it 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 starting point is that an adult independent child should receive a portion of his or her parent’s estate in the absence of circumstances that negate the existence of a moral obligation to make provision for the child. The leading authority on wills variation claims (Tataryn v. Tataryn Estate) requires that the adequacy of provision be measured by asking whether a will-maker has acted as a judicious person, using an objective standard informed by current societal legal and moral norms.

Evaluating reasons for disinheritance

Some difficulty can arise in BC wills variation claims, as there is a line of authority in our province which holds that a child may be disinherited by a parent if the expressed reasons for disinheritance are valid and rational—it is not necessary to find the reasons were justifiable. There is a disconnect between this subjective approach and the objective Tataryn approach. A will-maker’s reasons for disinheritance may be factually valid, and rational in the sense of having a logical connection to the act of disinheritance, but not necessarily determinative of what a fair and judicious parent would do in the circumstances, by reference to contemporary community standards. The Enns wills variation case demonstrates this analytical rift. Mary’s reasons for the limited bequest to Norma were at least to some extent factually valid, and rational in the sense of having a logical connection to the act of disinheritance. However, when the court considered Mary’s reasons for disinheritance in the broader context, the reasons did not hold up.

Wills variation claim allowed

Mary’s will did not make adequate provision for the proper maintenance and support of Norma. The size of the estate was adequate to satisfy Mary’s moral obligation to Norma, and Mary’s subjective reasons did not negate this moral obligation. The Honourable Mr. Justice Branch concluded that society would not reasonably expect a restriction to less than 1% of a $1.1 million estate for an adult daughter who gracefully fulfilled all her duties to her mother for 36 of her 38 adult years, all in the face of mean-spirited attacks on both her and her husband. This small percentage was outside the range of acceptable options.

Spite cannot support a rational approach to testamentary decision-making

The two-year estrangement was triggered by an honest misunderstanding. The diminished moral duty Mary may have felt when she prepared her 2009 will may have been legitimate at that time. But it is the time of her passing which is the operative time for the evaluation. By the time of her death, Mary and Norma were no longer estranged, yet Mary was unwilling to adjust to the new facts that developed from the 2011 reunion until her passing in 2015. Mary’s subjective reasons for essentially disinheriting Norma were not rational in that they did not reflect community standards, and further, were completely out of proportion to the alleged offences, contained an element of spite, and failed to reflect actual existing conditions. Justice Branch was also troubled by the fact that Mary put Elizabeth and Norma on the same financial footing at the time of creating her will, when her estrangement from Norma had only just begun a few months prior, whereas she had not seen Elizabeth for 12 years. This suggested some level of emotional reaction rather than a rational approach.

Take home point on BC wills variation claims

When a court is considering whether expressed reasons for disinheritance were valid and rational, it is entitled to resort to the concept of community standards. Those standards are unlikely to be met in the case of disinheritance that contains an element of spite, where the disinheritance is completely out of proportion to the alleged “offences” of the child, or where the disinheritance fails to reflect actual, existing conditions at the time of the parent’s death.