As we know, in British Columbia it is very common for applications to be brought to have a deceased’s will varied because one or more of the deceased’s children was disinherited.  The courts there rely consistently on a moral obligation of a parent to leave their estate to their children and to do so “fairly”. 

In Ontario, although this moral obligation has always existed as a factor to consider in dependant support applications, it was not until Cummings, that it was carried over to the same extent and it is now becoming a standard ground for relief in such applications.

In Bell v. Roy, a 1993 British Columbia case the estate was able to successful defend such a claim given the forward thinking actions of the solicitor who drafted the will.  The solicitor arranged for the testator to provide sworn evidence to the court (by way of affidavit) setting out her reasons for her disinheritance of two of her children –  in the case if either of her two disinherited children contested her will.  The affidavit explained that the testator had had little contact with the two disinherited children and they had provided little to no comfort or support to her in her later years.  The remaining child, who was left the entire residue of the estate had, in contrast, provided comfort and support and taken care of the testator during her illnesses. 

The lower court relied heavily on the affidavit in holding that the will should not be varied;  finding that “In those circumstances, if the facts were as she [the testatrix] believed them to be, I am satisfied she was entitled to draw the will in the way in which it was drawn”.   The court of appeal agreed in upholding that decision. 

Lesson Learned: when a client wishes to disinherit a child or make a will which could be considered “not as would be expected” consider obtaining the direct evidence of the client to provide the estate trustee with the necessary evidence to defend against such a claim.

Until next time,

Jasmine