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Friday, September 25, 2015

BC court says it's ok to disinherit an estranged child

I don't practice law in British Columbia, but I always read cases from that province with great interest, particularly when they discuss variation of wills. Variation of wills is a process whereby someone contests the will of a deceased person, and the court decides whether the will should be changed. The BC legislation that specifically allows this kind of variation is unique in Canada.

Recently I read an interesting blog post from a blog called Your Estate Matters which talks about the case of Kong v. Kong. Click here if you'd like to read the case report. Mr. Kong left the majority of his estate to his youngest son, left out two sons entirely, and left only small amounts to his other children. The disinherited children brought an application to the court with several allegations, including that the one son who received the estate had deliberately isolated the father from the other children and had unduly influenced the father to favour him in the father's will. They wanted the court to vary the will and give them an equal share of the estate.

The blog post by Your Estate Matters does a great job of summarizing what the court decided to do with this case. Click here to read it. The disinherited sons wanted the court to make a decision based only on what the deceased had told his wills lawyer, but the court looked further, in particular at the history of the sons' relationship with their father.

There had been incidents over the years that had caused rifts between father and sons.

The court said that where there was a "valid and rational" reason for the child to be disinherited, the court would keep the father's wishes in mind, and any variation to the will would be minor. In other words, the father who had real reasons for being angry and disappointed with a certain child could choose to disinherit that child - either fully or substantially - and the court wouldn't force an equal distribution between children.

I like this decision. For me, it adds clarity to what the court aims to do. It also supports the idea of testamentary freedom, whereby each of us can choose not to give our hard-earned assets to people who we don't think deserve them.

6 comments:

  1. What happens if assets are distributed before a challenge is resolved?

    ReplyDelete
    Replies
    1. That kind of situation usually ends up in court with a judge deciding how to fix the situation. The outcome depends very much on the facts of each case, but a judge can order that money paid to someone by an estate must be repaid. It also depends on the actions of the executor. If the executor was negligent or fraudulent in distributing before he was supposed to, he could face personal sanctions by the court as well.

      Lynne

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    2. Are there any time limits (in Ontario) on how long after probate a challenge can still be submitted?

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  2. Lynne, thanks for linking to our post and congratulations on opening your new office!

    ReplyDelete
    Replies
    1. You're very welcome. I read your blog frequently and really enjoy it. Opening a new office is quite an adventure, but I'm loving the sense of freedom :)

      Lynne

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  3. I understand it legally, but I disagree with it humanly.

    Funny enough, my friend is dealing with the exact same issue in Italy. Where her dad left his only child out of the will. However in Italy, according to my limited understanding, the law does not allow children to be cut out of an estate. Apparently his child, his current wife, and even his ex-wife from 25 years ago with whom he had lived in the house and the had child, are all legally entitled to a piece of the pie. 1/3 each I believe.

    Aside from whatever Italy's motivation might be for such a law, I believe that on a human level, parents, as parents, should not disinherit their children either financially or emotionally. The act of having a child should make you responsible for their well being until, and after you die. But of course, the law disagrees....

    ReplyDelete

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