“Testamentary freedom” is the notion that a will-maker (or “testator”) is entitled to divide her property upon death however, and to whoever, he or she sees fit. In certain circumstances, however, statutes and courts in British Columbia and other jurisdictions have limited this freedom, by requiring the will-maker to provide for certain beneficiaries in the will. In the case of the will-maker’s spouse and children, the will must make “adequate provision for the proper maintenance and support of the will-maker’s spouse or child” , or, if requested to do so after the will-maker’s death, the court can “vary” that will, if it considers it just and equitable to do so. Such claims are now brought under section 60 of the British Columbia Wills, Estates and Succession Act, and, in the case of children, can be initiated by a child of any age, as the courts have determined that a parent may still have a legal or moral obligation to provide for their adult independent child.
However, these obligations of the will-maker are not absolute. Even if a court finds that a will-maker had an apparent “moral duty” to provide for their spouse or child, and did not do so, that obligation can be negated if the will-maker is found to have had sufficiently “valid and rational” reasons to disinherit or reduce that beneficiary’s gift in the will, as this blog has covered in the past.
Conversely, the 2016 decision of Sharma v. Sharma Estate provides an instructive example of a situation where a will-maker’s stated reasons for disinheriting adult children were deemed not to be “valid”, i.e., not based on true facts, and, therefore, could not be used to negate the will-maker’s moral duty. In this case, the specific reason relied upon to disinherit was that the excluded children were said to have already received sufficient gifts during the will-maker’s lifetime, and, accordingly, did not deserve any further gifts from the estate.
The deceased had an estate of approximately 1.75 million and three living adult children at the time of her death, two sons and a daughter. She had made three wills over her life; the first two left 90% of the “residue” of her estate (i.e., the money remaining in an estate after the debts and specific gifts have been removed) to her daughter, 10% to her youngest son, and minimal specific gifts to her oldest son. The third and final will instead granted the youngest son the entire residue, and left nothing to her other two children. The will-maker’s reason for disinheriting her two children, as stated in the will, was that they had already received “plenty of monies” during her life, while her youngest son had not.
The court found that declaration to be factually incorrect. The evidence indicated that the youngest son had actually received significant financial assistance over the course of the will-maker’s life, being given: a monthly living allowance, rent-free accommodation at the will-maker’s home whenever he was not incarcerated, legal fees for several of his convictions, and, after her death, sole ownership of a joint bank account that he had formerly shared with the will-maker worth over $100,000. The other two children, conversely, had received relatively minor gifts over the course of the will-maker’s life – $15,000 for the daughter, and nothing at all for the oldest son.
Given the finding that the will-maker’s reasons were not based in fact, they were deemed “invalid” by the court, and disregarded. Then, the court assessed whether the will-maker had a moral duty to provide for the excluded children, by looking at what a “judicious parent”, informed by “contemporary moral norms”, would do under the circumstances. It found that a judicious parent in the place of the will-maker would have shared her estate amongst her children, and so the court elected to vary the will, granting 34% of the residue of the estate to the deceased’s daughter and 33% to each son.
This case reaffirms that, even when a will-maker has clearly outlined her reasons for disinheritance in the will, a court may still order the will varied if it finds, on the evidence, that the facts underlying those reasons were not true.
