Valid Reasons for Disinheriting a Child

For people who are unfairly disinherited, BC has some of the most sympathetic laws in all of Canada. However, parents can disinherit their children from their will if they have valid and rational reasons. Many provinces allow will-writers to completely disinherit their adult children, giving the will-writer nearly complete testamentary autonomy. However, BC courts regularly vary unfair wills that are guilty of disinheriting children for invalid reasons.

Why BC Courts Modify Unfair Wills

Upon first hearing this, people wonder, why can BC courts modify someone’s will? In BC, the will-writer uses a will as their final opportunity to do right by their family members. If the testator leaves a child without adequate provision, it could leave them requiring financial aid in the future. The will-writer’s disinheritance of their child could burden tax-payers, as the aid probably comes from government services.

Basically, BC courts recognize that each person has a right to do what they want in their will – testamentary autonomy. However, this freedom has to be balanced with the best interests of society as a whole.  That’s why BC does not allow disinheritance without valid or rational reasons.

Valid Disinheritance in BC Law

According to the Wills, Estates and Succession Act:

“Despite any law or enactment to the contrary, if a will-maker dies leaving a will that 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 court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”

If the will-writer fails to make adequate provision for proper maintenance or support, the courts have the ability to change the will to reflect what they deem to be adequate, just and equitable in the circumstances. This could include large modifications of the main provisions of a will.

What Makes a Reason Valid?

To properly disinherit an adult child or a spouse, the will-writer must have reasons that are:

1. Valid – a true fact;
2. Rational – a logical connection to the disinheritance, and;
3. Consistent with modern Canadian values – not racist, sexist, discriminatory, etc.

If the reasons for disinheritance are not valid, rational and consistent with modern Canadian values, the courts can modify the will.

Generally, the most common reason for disinheritance is estrangement. Estrangement is when two people are not on friendly terms and refuse to communicate with one another. If a child is the primary determinant in the estrangement, this is typically a valid and rational reason for a parent to disinherit them. Like all reasons for disinheritance, it’s largely dependent on the individual situation as to whether the reason is rational or not. Courts will deem a reason as rational if a reasonable parent could choose to disinherit for the reason given. Importantly, this is not to be confused with saying a reasonable parent would always choose to disinherit for the reason given.

Examples of Valid Reasons for Disinheritance

The case of Holvenstot v. Holvenstot (2012)is a case where the courts allowed disinheritance. Disinherited by his mother, a son appealed to the BC Supreme Court to alter her will. A number of purported reasons for the disinheritance were addressed by the court, some of the main reasons shown to be true were:

1. The son lied about growing marijuana on his mother’s property which ended in the mother being arrested and convicted for drug possession;
2. The son tried and failed to have the mother declared mentally incompetent by the court;
3. The son kept numerous items of the mother’s, requiring her to bring legal action against him to get them back, and;
4. The son tried to trick the mother into giving him ownership of her land.

The son had to prove the irrationality of these reasons, given the determination that the above facts were true. Ultimately, the judge ruled the reasons as rational due to their logical connection to the disinheritance. The courts ruled that a reasonable parent could make the decision to disinherit their child in the above circumstances. Additionally, none of these reasons for disinheritance violated modern Canadian values.

How to Properly Disinherit a Child

As a parent who wants to disinherit a child from their will, you should prepare a document detailing exactly your reasons for the disinheritance. Providing specific details and examples will help the courts understand the reasons for disinheriting the child. The courts are unlikely to overrule a disinheritance if you present a reason that is valid, rational, and aligns with Canadian values.

If you’re concerned about disinheritance in your estate planning – contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.