Disinheriting An Independent Adult Child ' BC Court Of Appeal Confirms Objective Judicious Parent Test In Wills Variation Actions: Tom V. Tang, 2023 BCCA 221

• Published date: 18 August 2023
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
• Law Firm: Alexander Holburn Beaudin + Lang LLP
• Author: Mr Matthew B. Nakatsu

In British Columbia, if a person dies leaving a Will which does not, in the Court's view, make adequate provision for their spouse or children's maintenance and support, the deceased's family members can bring a claim in the BC Supreme Court under s.60 of the Wills, Estates and Succession Act, SBC 2009, c.13 ("WESA"), to vary the deceased's Will. If such a claim is successful, the Court may order provision be made from the deceased's estate for that family member, in a manner and amount that the Court considers adequate, just, and equitable in the circumstances.

The determination of whether a will-maker has left adequate provision is grounded in:

(a) the will-maker's legal obligations, such as to their surviving spouse or minor children¹; and

(b) moral obligations, such as to their adult children², at the time of their death.

It does not follow from s.60, however, that a parent is enjoined in every circumstance from favouring one adult child over others, or disinheriting an adult child altogether. Such treatment can be upheld by the Court in circumstances where the will-maker has "valid" and "rational" reasons for their chosen distribution.

Nearly 30 years ago, in Tatatryn v. Tataryn Estate, [1994] 2 SCR 807, the Supreme Court of Canada made clear that a will-maker's reasons, even those which are "valid" and "rational", must be assessed objectively, based on society's reasonable expectations of what a judicious parent would do in the circumstances, with reference to contemporary community standards and society's reasonable expectations.

Over time, in BC, the s.60 jurisprudence underwent an interesting shift, developing an analytical framework that appeared to be in tension with the core reasoning in Tataryn. Specifically, a line of authorities emerged which suggested that where a will-maker's reasons are "valid" (that is, factually true) and "rational" (in the sense of being logically connected to the act of disinheritance), even significantly unequal treatment of the will-maker's adult children would not be disturbed by the Court. It appeared that the will-maker's reasons did not need to also be objectively reasonable.

For example, in Hall v. Hall, 2011 BCCA 354, the BC Court of Appeal held that:

[43] ... [I]t is not necessary to find the reasons were justifiable. It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance: Kelly v. Baker (1996), 82 B.C.A.C. 150 at para. 58.³

On its...