Challenging And Defending A Will That Disinherits A Child

• Published date: 01 February 2021
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: McKercher LLP
• Author: Ms Paige E. Van De Sype

If a person dies intestate, the legislation directs that their estate will be payable to their spouse and/or their children.¹ This principle of usual or natural bequests is also considered at common law when assessing capacity, i.e. whether the deceased understood who would reasonably expect to share in the estate.² Even so, people retain the right to depart from this proclivity and they often do.

Being cut out of a will is not, on its own, enough to successfully challenge a will. There needs to be other indicia that support findings of a lack of capacity, lack of knowledge and approval, and/or undue influence. While not determinative or exhaustive, a court should consider the following in assessing the suspicious circumstances surrounding the making of a will:

(1) the extent of physical and mental impairment of the testator around the time the will was signed;

(2) whether the will in question constituted a significant change from the former will;

(3) whether the will in question generally seems to make testamentary sense;

(4) the factual circumstances surrounding the execution of the will; [and]

(5) whether a beneficiary was instrumental in the preparation of the will.³

If suspicious circumstances are established, then the propounder of the will must respond with evidence to negate the suspicious circumstances, which could include detailed estate planning notes from a lawyer, verbal or written communication of the will-maker's intentions in advance, an understandable reason for the disinheritance and any other evidence of their capacity and independence from objective parties.

A parent's reason for disinheriting a child should also be examined with a view to determining whether it is based on facts rather than impelling delusions, meaning a "belief in a state of facts which no rational person would believe" that causes the testamentary dispositions.⁴ This principle was very recently applied when a mother left her entire estate to one daughter and disinherited her other two children. Under her previous will, she had divided the estate equally amongst all three children.⁵ The mother's reasons for disinheriting the other two children was that (1) her son was well-off, did not need the money and was disinterested in her; and (2) that her other daughter had taken money from her and otherwise mismanaged her money, they had fought and were not speaking, that the daughter rarely visited her and was after her estate in the same way the daughter went after other...