The British Columbia Supreme Court recently refused to vary
a mother's Will that left only a token $10,000 to an
estranged son. In Brown v. Pearce Estate, the
challenged Will read in part:
"I wish to leave no more than the $10,000 referred to above
to my estranged son...Although I have sacrificed for him and I have
supported him over the years, he has refused any contact with me,
and...he has made it clear that he wants no further relationship
The son asked the Court to vary the Will, claiming that the
mother owed him a moral duty to provide more than the $10,000
gift. The Court considered the facts carefully, and declined
to order a variation.
In his reasons for judgement, the learned Mr. Justice Kent noted
that in a claim under the Wills Variation Act, an
estrangement may either negate or enhance the moral obligation of a
parent to provide for a child, depending on the circumstances.
In the circumstances of this case, the Court "found
as a fact that it was the plaintiff and not his mother who
created and perpetuated the estrangement" between them.
In particular, the Court noted:
The plaintiff gave evidence of his childhood, detailing
neglect and verbal and physical abuse. This conflicted with
other statements he had made prior to the trial, including a loving
note declaring his parents to be "perfection"
and "role models" for him.
The plaintiff's reason for not contacting his mother from
1995 through to her death in 2012 was that he claimed he did not
know her phone number or address. The Court did not accept
this as a reasonable explanation on the facts.
The plaintiff's son saw the deceased regularly, through the
plaintiff's ex-wife. The plaintiff's son and ex-wife
clearly had the deceased's contact information.
The ex-wife had told the plaintiff that the deceased wished to
have contact with him, but the plaintiff refused to contact the
The Court therefore concluded that the deceased's reasons
for disinheriting her son were valid and rational, and demonstrated
on the evidence. The Court upheld the Will.
While denying a variation, this case does not change the
interpretation or application of the principles underlying the
Wills Variation Act. Indeed, it is established
law that a testator is within their rights to effectively exclude
an adult child if the facts demonstrate that the estrangement and
lack of contact was attributable to the child, and not to the
This case was decided under the Wills Variation Act
because it was commenced before WESA came into force.
However, given that the relevant provisions in WESA are largely the
same, we can expect similar considerations in assessing the reasons
for an effective disinheritence under the new legislation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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