A judge will consider much more than the circumstances of an estranged relationship when deciding whether you have failed to meet your moral duty by disinheriting a child.
By 鈥渃hild鈥�, I don鈥檛 mean a financially dependent young person. I mean your independent adult child.
I鈥檒l also clarify that this subject matter applies only to offspring and adopted children. There is (perhaps oddly) no moral duty under the law to make provisions in your will for stepchildren.
Judges base their decisions on objective factors and the evidence in each case. In the words of Justice McLachlin in a case called Tataryn v. Tataryn Estate, 1994 S.C.R. 807, a judge considers 鈥渟ociety鈥檚 reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.鈥�
The default starting point is that where the size of an estate allows for it, something should be given to your independent, adult child unless there are circumstances that would justify disinheriting that child.
That begs the question of what circumstances a judge will consider when evaluating a parent鈥檚 moral duty leave a portion of their estate to a child.
A list of circumstances has been recently provided by Justice MacNaughton in a case called Pascuzzi v. Pascuzzi, 2022 BCSC 907.
I discussed the first item of that list last week, i.e. the relationship between the parent and child, which Justice MacNaughton noted includes 鈥渁bandonment, neglect, and estrangement by one or the other鈥�.
Another important circumstance is the size of the estate. If you have a three million dollar estate your moral obligation to leave something to a child is higher than if there鈥檚 $100,000.00.
That makes sense, right?
You will find that every item on the list makes sense because the list is based on what the courts have identified as our societal norms.
Another commonsense factor is the extent that your child has made contributions to you over your lifetime, whether those contributions were financial or by providing help and care. The greater your child鈥檚 contributions to you and/or the accumulation of your estate, the greater your moral duty to leave your child a portion of your estate.
Have you led a child of yours to expect a share of your estate? If you did, you increased your moral obligation to follow through. If you lead a child on to believe that they will receive an inheritance from you, you are giving the child ammunition to challenge your will if you disinherit them.
Another listed circumstance is the standard of living of both the will-maker and the child. It makes sense that if your standard of living is very high and your child鈥檚 is very low, your moral obligation to the child would be increased.
The most obvious consideration that would weigh against a moral obligation to include a child as a beneficiary of your will is if you鈥檝e already given them their inheritance while you were alive, or they received assets outside of your will.
You might have helped your child purchase their first home by providing a downpayment, for example. Or given a helping hand in other circumstances.
And assets can be received outside a will in various ways, such as through joint ownership or naming your child as beneficiary under a registered investment like a RRIF or TFSA.
A judge will also consider your reasons for disinheriting a child. This is why many lawyers encourage a parent to provide an explanation for their decision, either within the will itself or separately. Care must be taken to ensure that your reasons are based on accurate facts.
The financial need and other personal circumstances, including disability, of your child is another listed consideration. The greater their financial need, the greater your moral duty to provide for them in your will.
The judge in the Pascuzzi case also listed the 鈥渕isconduct or poor character of the claimant鈥� as a circumstance that would mitigate against your moral duty to them.
The last circumstance listed is others who have an interest in your estate. Any interference with your will, requiring a share of your estate to go to the disinherited child, is an amount taken away from those who you have chosen to leave your estate to.
You might have moral duties to others. You might have had compelling reasons to leave bequests to an incredibly supportive friend or charitable cause.
If your will is challenged by a disinherited child, or a child who asserts that they should have received more, the court will consider all of these circumstances when determining whether or not you have met your moral duty.
A good strategy for avoiding such a challenge would be to take all of these considerations into account when you are making your will in the first place!
Note that there is no perfectly correct way divide your estate. The Tataryn case recognizes that 鈥溾�n any particular situation there may be a number of ways of dividing the assets which are adequate, just and equitable, and provided the testator has chosen an option within the range, the will should not be disturbed鈥�.
There are ways to completely sidestep a child鈥檚 ability to challenge the way you choose to pass on your wealth, even if everything points to a strong moral duty to that child. I feel it鈥檚 time to leave the unpleasant topic of disinheriting children for a while though, and will cover those ways at some point in the future.
I welcome e-mails (paul@hlaw.ca) about end-of-life topics that would interest you. Please don鈥檛 hesitate to reach out.
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul鈥檚 personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 陆 years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul鈥檚 intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
