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Saturday, June 26, 2021

Father Disinherits Daughters in a Misguided Attempt to Punish Them

It's always interesting for me to talk with a parent who wants to make a will but wants to leave out one or more of his or her children. This is because the "can I do that?" question does not have a simple answer. We always get into a discussion about why that child should be left out.

Parents who live in British Columbia are in a different situation than the rest of us because their law is different. BC law opens the door to variations to the will of a deceased parent much wider than the other provinces. Because some of you readers are in BC, I want to refer you to a really excellent article I have just read that discusses a case just like this. The article is by Janice Ko and appears on a blog called onyxlaw.ca. Click here to read it.

The article talks about the new case of Jung v. Poole. A father who was not married to the mother of his twin daughters had nothing to do with the kids for the first four years of their lives. He met them for the first time when the mother died and the father decided to try to get custody. He was unsuccessful and then disappeared completely again. He died when the twins were 32 years old and left a will which specifically said they were left out.

The twins challenged the will saying their father had a moral obligation to leave them something. They won, and each of them got 35% of the estate.

This result probably would not happen in any other province, where a person challenging a will must be a dependent (i.e. a spouse, a minor child, or a disabled adult child).

The article I linked to above has a really excellent summary of the case and discussion of why the court decided as it did. Specifically, it discusses when estrangement can be relied upon as a reason for leaving a child out of a will in BC. If you are considering leaving out one of the kids, read this first!

2 comments:

  1. I read both articles. I believe it was the right call. Just follow the logical flow?. Perhaps other Provinces could learn from BC?
    Webeye

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    Replies
    1. There is actually a fair amount of debate on the topic. The question is all about testamentary freedom, or the right to include who you want to include in your will, and exclude who you want to exclude. I don't think anyone argues that it's okay to cut out real dependents (spouses, minor children, disabled adult children) but many do argue that we should be able to exclude adult, financially independent children if we want to. In most of Canada, that is the case and I don't see a big appetite among lawmakers to change it. I do know that one province right now is looking at making that sort of change but that's it.

      Lynne

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