A recent court decision lists factors a judge considers when determining whether or not you have met your moral obligations to each of your children in your will.
The court decision, Trudeau v. Turpin Estate, 2019 BCSC 150 , deals with an attack of a mother鈥檚 will by two of four daughters who were left shares of only 5 per cent each.
All four daughters were independent, ranging in age from 56 to 68.
As a society, we long ago passed a law requiring the court to vary a will if the testator has failed to meet their legal or moral obligations. That law is now found in section 60 of the Wills,
The judge in the Trudeau decision provided a list of six factors considered by the court when evaluating the strength of a testator鈥檚 moral duty to independent children. You should carefully consider these factors when making your own will.
I explained the first, 鈥淐ontribution and Expectation鈥�, in my last column.
The second is listed as 鈥淢isconduct/Poor character鈥�.
Section 63(b) of the allows the court to refuse to vary a will in favour of a person on the basis of their character or conduct.
A previous case, explains that only misconduct up to the date of death (not after death) is considered, that the misconduct must be directed at the testator and also that it must be quite severe in order to justify disinheritance.
The court gave examples of cases where disinheritance was not justified. One was where a child was described as a disappointment overall. In another, the child was referred to as an 鈥渋ncompetent weakling鈥�. And in another, the child had been unsuccessful in multiple business ventures and had been referred to as having difficulty 鈥渇ighting the battle of life鈥�.
A third factor considered by the court when evaluating the strength of your moral duty to a spouse or child is listed as 鈥淓strangement/Neglect鈥�.
The law has changed over time on this point. Historically, a long period of separation, abandonment or estrangement frequently reduced a parent鈥檚 moral duty to a child.
More recently, the court has been inquiring into and considering the role the parent played in the estrangement or relationship breakdown. If the relationship breakdown has been largely the fault of the parent, their moral duty to an estranged child might even increase, rather than decrease.
And childhood neglect can also serve to increase the parent鈥檚 moral duty to provide for that child in their will.
Family dynamics that lead to estranged relationships between parents and children are deeply painful and deeply personal. A lifetime of attempts to reach out to a child who consistently responds with abuse might be something you keep close to your heart and not share with anyone.
If you leave that child little or nothing and he challenges your will after you have died, how can the court fairly evaluate whether you have met your moral obligations if all they have is that child鈥檚 side of the story?
Even if you have journaled that history, and that journaling is something the court would consider, there鈥檚 bound to be a 鈥渉e said she said鈥� fight about that long and painful family history. How do you win such a fight if you鈥檙e not here?
And can you imagine all of that deeply personal and painful family history aired in a public trial?
Next week I will conclude this series with the remaining factors considered by the court when evaluating your moral obligations.
This area of the law is complex and I am able to provide only a very minimal glossing over of the subject matter in my column. Please obtain legal advice specific to your particular circumstances to ensure your testamentary intentions will best survive an attack, or to consider attacking a will where you have been unfairly dealt with.
Missed last week鈥檚 column?
Hergott: Contribution and Expectation of a will
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