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.