The British Columbia Wills Variation Act (“WVA”) permits the Court, in certain cases, to vary the terms of a will in order to make adequate provision for the proper maintenance and support of a spouse or child. This type of action can be initiated by children of all ages as the courts have determined that a parent may have a legal or moral obligation to provide for their adult independent child. A legal obligation will generally not arise unless the child contributed to the estate in some way. A moral obligation may be negated by the existence of the deceased parent’s reasons for disinheriting their child, if those reasons are valid and rational.
In Holvenstot v. Holvenstot, a recent BC Supreme Court case, the deceased made three wills in which she divided her estate equally between her four children and then made a new will in which she disinherited her adult independent son. Attached to her will were the deceased’s written reasons for why she decided to disinherit her son. Her reasons related to a long list of complaints she had about her son, including that he had planted marijuana on her property leading to her conviction for drug possession, and that he had tried to have her declared incompetent so that he could obtain control over her estate.
The son claimed, among other things, that his mother had a moral obligation to make adequate provision for him in her will, that the size of her estate was large enough to make such a provision, and that no circumstances existed which would negate a moral obligation. In particular, he denied many of the allegations made by his mother and argued that her reasons for disinheriting him were either untrue or not rationally connected to her decision to exclude him from her will.
A significant portion of the judgment involves the court going through each of the reasons given by the deceased for disinheriting her son. Ultimately, the court concluded that at least some of the mother’s complaints about her son were valid, and that these reasons were rationally and logically connected to her decision to disinherit her son. The court then considered whether the objective “judicious parent” test must also be applied in order to determine what a sensible parent, aware of contemporary community standards, would do in the same circumstances. The court found that in light of recent case law, it is questionable whether this objective test must still be applied, but if the Court was wrong on this point, then based on the reasons that existed, a sensible parent could have come to the same decision in the circumstances. Accordingly. the son’s WVA claim was dismissed.
It will be interesting to see whether the objective test of the “judicious parent” will be applied in future WVA cases involving disinherited children. A move away from this objective standard may help preserve testamentary freedom, but it will also make it more difficult to ensure that children are not disinherited for reasons that are discriminatory or contrary to modern Canadian values.
