The recent decision of Kong v. Kong confirms (and not for
the first time) that in some circumstances the court will support
the decision of a parent to exclude an adult child from their will
entirely, and deny a claim under BC wills variation legislation. In
this case the court disallowed the claims of two disinherited sons,
and allowed two others only a 5% share of the estate.
A few observations from this case:
Hostile conduct by the child and
failing to accept reconciliation when offered can negate the
parent's moral duty to the child.
In this case the evidence showed that one of the sons who was
excluded from the father's will treated his parents harshly in
relation to a sale of a residence that they shared; the same son
later made strong allegations about the father in the context of a
legal dispute over their mother's estate. These actions angered
and offended the father. Nevertheless, the father reached out in
his final days and asked the son to visit him in the hospital. The
son refused the invitation. The court found that this behavior
negated any moral obligation the father may have had to the
Even where a variation is allowed,
the will-maker's wishes remain influential.
Sometimes people wonder whether leaving a modest gift to an
estranged child is more likely to preclude a successful wills
variation claim than leaving nothing to the same child. However, in
this case the court said that the will-maker's clear intent to
leave everything to one child meant that in the two instances where
it allowed variation, the variation ought to be minor.
In considering whether a
will-maker's reasons for disinheriting were valid and rational,
the court will consider all of the circumstances, not just direct
statements made by the deceased.
The claimants tried to argue that evidence of their actions in
respect of the father, including in the context of the prior family
litigation, should be excluded. They wanted the court to consider
whether the father's decision was "valid and
rational" only on the basis of the evidence of what the father
had said to his lawyer. The court rejected this approach,
The implication of the
plaintiffs' position in this case would be to limit the
court's analysis to the testator's expressed, and therefore
subjective reasons, rather than making an objective inquiry into
the reasons for disinheriting grown children with reference, as
necessary, to community standards. In my view the plaintiffs'
approach amounts to excluding important evidence about the
testator's relationship with his grown children.
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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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.
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.
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