Disinheriting adult independent children under the B.C. Wills Variation Act.

• Author: Todd, Trevor
• Position: Feature: Children Caught in Confusion

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As is long as testamentary freedom exists, there always will be parents who try to disinherit their adult children.

Indeed, it seems such cases are increasing as the modern makeup of families changes. For example, with more divorces and remarriages, testators may wish to provide for a second spouse and/or for younger children, rather than older children.

In British Columbia, it is possible for a parent to disinherit an adult independent child. If doing so by means of their last Will, however, parents must plan carefully or run the risk that the court will ultimately vary the Will.

In this article, we examine the legislation and review some of the factors the courts consider relevant in deciding whether the disinheritance should be permitted.

The Wills Variation Act

In British Columbia, the Wills Variation Act permits

the court, in appropriate cases, to rewrite a Will to make provision for designated family members. Eligible claimants under this Act include the testator's spouse and/or children both biological and adopted. Common law spouses and same-sex partners are also potential claimants if they have cohabited with the deceased for at least two years. Stepchildren are not included among the class of eligible family members.

The heart of the B.C. Wills Variation Act is found in section 2, which sets out the statutory basis for varying a Will. This section provides that if, in the court's opinion, a Will fails to make adequate provision for the proper maintenance and support of the testator's spouse or children, the court has the power, in its discretion, to vary that Will.

In such a case, the court is given the power to make the provision that the court considers adequate, just, and equitable in the circumstance. Those two tests have been described as two faces of the same coin (see Tataryn below).

What is Adequate Provision?

The Wills Variation Act was examined by the Supreme Court of Canada in the 1930 case of Walker v. McDermott (1931) 1 D.L.R.662, where the Court decided that a child did not have to demonstrate financial need as a prerequisite to a successful claim.

The Court interpreted the Act as creating a moral obligation for a parent to provide for his or her adult independent children, and that "proper maintenance and support" is not limited to the bare necessities of existence.

Such a parental duty is accepted as the norm in most of the non-English-speaking world where testamentary freedom does not exist.

The Wills Variation Act was re-examined by the Supreme Court of Canada more recently in Tataryn v. Tataryn Estate (1994) 2 S.C.R. 807.

In Tataryn, McLachlin J. (now C.J.C.) identified two fundamental interests protected by our Act, as follows.

1. The statutory objective of the adequate, just, and equitable provision for surviving spouse and children.

2. The testator's testamentary freedom

Under B.C. law, this testamentary freedom is subordinate to the main statutory objective. In other words, a testator enjoys testamentary freedom only so long as he or she makes adequate provision for the surviving spouse and children protected by the Wills Variation Act.

In Tataryn, McLachlin J. clarified the moral duty of a testator to make proper provision. She wrote that the question of whether a testator has acted judiciously as a parent or spouse should be...