Children And Grandchildren FAQ

  • The children were treated unequally in the will - is that fair?

  • The testator rarely saw the child after the divorce - is that grounds to disinherit?

    • No. A testator cannot avoid his moral obligation to his child by unilaterally withdrawing from the relationship

    In Gray v. Nantel the testator and his wife separated when the child was one year old. The testator only saw the child once in the next 17 years and paid limited and sporadic child support. When the child was 18 the testator offered him a job. However, the child was laid off after 3 months due to a lack of work, and the testator never gave the child his final paycheque. They only spoke once after that.

    The Court of Appeal said that a child who was neglected during childhood then treated shabbily during a brief reconciliation does not forfeit his moral claim to a share of the estate by abandoning further effort to establish a relationship. The fault lay with the testator and he bore the onus of seeking a further reconciliation. If the testator gave the child nothing in an emotional or material way while living, the will is his last opportunity to do right by the child.

  • The value of the estate changed a lot between the time the will was drafted and the date of death - does that matter when deciding whether a gift to a child is fair?

    • Yes. A judicious parent can favour one child over another. However, if the value of assets changes a lot before death, the final result may be considered unfair

    In Kelly v. Bell the deceased mother owned a house and some cash. In her will she gave her son the house and divided the cash equally between her son and daughter. When she drafted her will, the house was worth $1 million and she had $860,000 in cash. By the time she died the house was worth $2 million and she had $700,000 in cash.

    The judge said that the testator's reasons for making an unequal distribution were valid and rational. While the planned distribution of 77% to the son and 23% to the daughter was probably on the low side, it was not outside the range of adequate, just and equitable distribution. However, by the date of death the value of the assets had changed enough to make the distribution 88% to 12%. This division was not within the range of society's reasonable expectation of a judicious parent in the circumstances. It was dangerously close to a disinheritance of the daughter, which the testator never intended to do.

  • Can an estate be distributed where the will gives gifts to unborn beneficiaries?

    • The will has to be interpreted to give effect to the wishes of the testator even when the likelihood of unborn beneficiaries is very small.
    • Money has to be set aside for the unborn beneficiaries.
    • If no further beneficiaries are born, the existing beneficiaries share the money that has been set aside.

    We represented the daughters of the deceased in Re Mackay Estate. The will distributed part of the estate upon the death or remarriage of the widow. The money was to be given to two daughters and the grandchildren.

    We produced evidence that our clients were not going to have any more children and applied to have the money paid out now. The Public Guardian and Trustee argued that there was still the possibility that our clients could adopt children.

    The judge decided that although it was unlikely that other grandchildren would be born, the possibility of adoption existed. There was little practical difficulty in setting aside appropriate funds from the gift to provide for the potential adopted grandchildren. If any were adopted, the money set aside would be paid to them. If there were none, then on the death or remarriage of the deceased's widow, the money would be distributed to the existing grandchildren.

  • What behaviour by a child will justify disinheriting that child?

    • It varies as each case is unique
    • Lengthy estrangement, caused by the child, is a common factor
    • Other behaviour may also justify disinheriting

    In Bereyere there was a 30 year estrangement between the testatrix and her daughter. That estrangement was initiated by the daughter

    1. suing the testator in Small Claims Court over a floor polisher,

    2. opposing the testator's application for custody of the daughter's child, who was being raised by the testator without the daughter's assistance, and

    3. by refusing to consent to the release of $2,000 paid by the child's father for support of the child.

    4. The judge decided that these facts justified the disinheritance.

    In Hall there had been a series of estrangements in the 30 years prior to the testator's death. The final alienation, which lasted 8 years, occurred after a minor confrontation that occurred when the testator was in the hospital. The son then moved, did not provide a forwarding address, and made no effort to contact the testator again. The trial judge said that a testator who has been rejected by a family member is not required to ignore the rejection. The Court of Appeal agreed.

    In Kelly v. Baker the relationship between the parents and son became strained during the son's teenaged years. The son left home at age 17 after a physical altercation with his father. Over the next 25 years he had little to do with his parents. He moved away from BC, got married, and returned to BC without telling them. On the rare occasion that he saw his mother, he behaved unpleasantly. When his father was dying he neither visited nor communicated with his mother. The Court of Appeal agreed that there was good reason for the testator to believe that her son had abandoned the family, and good reason for her to feel that her son had treated her and her husband in a hateful and hurtful way. She was entitled to cut him out of the will.

    In Holvenstor the testator had a lengthy list of reasons for disinheriting her son. Some were false. Some of the significant true reasons were that the son had:
    1. grown marijuana on her land, resulting in her being convicted with possession and placed on probation,

    2. had tried (but failed) to have the testator declared incompetent,

    3. tried to acquire ownership of her land, requiring her to sue to get the contract cancelled,

    4. kept some of her personal property, again requiring her to sue to recover them, and

    5. sought (but failed to get) a court order to compel her to have contact with him, against her wishes.

    The judge accepted that these reasons were logically connected to the decision to disinherit the son. A judicious parent could reasonably decide to disinherit a son for these reasons.