As parents, we all love our kids. But as they grow into adulthood, our relationship with our children necessarily change. Perhaps, one child has sacrificed time or personal aspirations to be available to assist in your care. Maybe one child is doing well financially while another child is struggling to make ends meet. Unfortunately, in some cases, our relationship with our adult children may be strained or severed completely.
You may have many reasons for wanting to leave your worldly possessions to one child and not the other. However, you must bear in mind that if you decide to disinherit one child in your Will, that child may very well challenge it. If your child challenges your Will, what is the likelihood that they would succeed? And what can you do now to make sure your wishes are followed after you have passed away?
In 2010, a court in British Columbia dealt with four daughters who challenged their deceased father’s Will. The deceased, Mr. Werbenuk, named his son the sole executor and beneficiary of his estate, leaving nothing to his four daughters. The court based its decision on the Wills Variation Act of that province, which essentially gives a court the power to “order that the provision [for the proper maintenance and support of the (deceased's) spouse and children] that it thinks adequate, just and equitable in the circumstances be made out of the [deceased's] estate for the spouse or children.” Under the circumstances, the deceased father’s will was deemed inadequate and ordered that the son share his inheritance with his siblings. The four sisters were successful in contesting their father’s Will because:
- Their father did not adequately or properly provide for their maintenance and support, given the size of their inheritance (which was zero) and the size of the estate.
- Their father’s Will was not in line with society’s reasonable expectation of what judicious parent would do in the circumstances by reference to contemporary community standards. Their father had been abusive, domineering and demeaning towards women. He favoured his only son above his four daughters, even as the latter contributed significantly to his care and well-being up to his death. On the other hand, the only son was spoiled by his parents and contributed little towards the care of his parents.
- Their father had a moral, if not a legal obligation, to provide adequate support to all his children. In this case, the moral obligation arose from an implied expectation on the part of his daughters that they receive an inheritance arising from their treatment of their father during his life time as well as the present financial circumstances of some of the daughters.
- There were no valid and rational reasons justifying the father’s disinheritance of his daughters.
In the 2010 Ontario case of Johnson v. Huchkewich, a disinherited daughter challenged her mother’s Will, which named another daughter sole executrix and sole beneficiary of her estate. The disinherited daughter was disabled and confined to a wheelchair. Her sister lived near her parents and cared for them as they grew old and became infirm. The court focused mainly on the issue of the validity of the Will based on claims by the disinherited daughter of the mother’s alleged incapacity and alleged undue influence on her during the making of her Will. The court did not concern itself with the myraid of reasons the deceased mother had for cutting one daughter out of her Will. In the end, the Court rejected the disinherited daughter’s arguments that her mother’s Will was invalid because she lacked the ability to assess and appreciate the moral claims of her children.
The reasons you have for wanting to disinherit one child and favour another will likely make a difference if you live in British Columbia. The courts in that province have the power to “rearrange” a Will if it thinks that the testator did not adequate or properly provided support for his or her spouse or children in their Will and if there are no valid or rational reasons, in the circumstances, for that inadequate support. People’s moral obligation to provide support to their spouse and children is a consideration for the courts in British Columbia in such cases. In Ontario, the courts will not likely find a Will invalid on the basis of a testator’s moral obligation to support his or her dependents nor will it delve into the testator’s reasons for disinheriting a child in favour of another. Rather, in Ontario, a Will would be found invalid mainly on the basis of proof of the testator’s incapacity or claims that the testator signed his or her Will under suspicious circumstances.
If you want to disinherit your child and you live in Ontario, make sure you have a Will properly drafted and executed with the help of a lawyer. Anything less could leave your Will vulnerable to a successful challenge from your disinherited child and your wishes discarded with it.
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