A severely strained relationship might seem like the most justifiable of reasons for disinheriting a child.
Your will is your last opportunity to make an impact on the world.
Money talks. Your will is a megaphone.
Most will-makers with independent adult children take great pains to use that megaphone to broadcast their equal love for each of their children.
But unresolved conflicts, misunderstandings or differences in beliefs or values can lead to strained relationships.
You can use your will as a megaphone to send a loud and clear message of disapproval to a child. But the law can leave that child with the last word if the reasons for your disapproval are not found by a judge to be sufficient to outweigh your moral duty as a parent.
The judge is going to dig into what happened that resulted in your strained relationship.
Imagine that struggle! Interpersonal relationships are incredible complex.
Your child will be there to explain their side of the story. You won鈥檛 be.
Your role will be carefully examined, without you having the opportunity to take the witness stand and explain.
Quoting from Justice Balance in McBride v. Voth, 2010 BCSC 443: 鈥淭he modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator鈥檚 moral duty, and may even enhance it.鈥�
The court will also examine what efforts were, or could have been, made to achieve a reconciliation.
Parents and children naturally start out with and build on a very close bond.
Conflicts and misunderstandings will inevitably arise, leading to hurt feelings that can become significant barriers to resolution.
If hurt feelings lead you to want to make the choice of disinheriting a child, your efforts (or lack thereof) at reconciliation will be examined.
My best legal advice is to take all reasonable steps to overcome those hurt feelings and achieve a reconciliation.
Some of us have a bit of a stubborn streak that can make that difficult. I would recommend enlisting the help of a relationship counsellor or psychologist.
There will be one of two outcomes.
The very best outcome is a reconciliation with your child.
Worst case scenario, there will be evidence of your efforts that can be used by your intended beneficiaries to fight a will variation lawsuit mounted by your disinherited child.
That evidence will be one important defence to such a lawsuit. It鈥檚 important that this evidence is 鈥減reserved鈥� in such a way that the court will have access to it after you have passed away.
It鈥檚 also important that your reasons for disinheriting your child in the first place are preserved, as well as evidence supporting those reasons.
It is quite important that you talk to a lawyer about how best to ensure that your wishes are followed, particularly if those wishes include disinheriting a child.
There are many other factors, apart from estrangement, that a court will consider when deciding whether or not a parent has made adequate, just and equitable provision for a child. I will be reviewing a list of those factors next week.
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.
