In a recent British Columbia decision, the court varied the deceased father’s will to provide for his twin daughters despite his stated intention to disinherit them.
Father Disinherits Twin Daughters in Will
The twins were born to the mother and father in 1986, who had only dated briefly. The parents never married nor did they live together. The mother raised the twins as a single mother without any involvement or financial assistance from the father.
In 1990, when the twins were four years old, the mother died. The mother had appointed two family friends to become the twins’ joint guardians upon her death. The twins also received money in the form of a trust for $100,000 from the mother’s life insurance policy.
However, a custody dispute ensued between the guardians and the mother’s family and the father.As part of the court proceedings, the father only first met the twins in 1990. He argued before the court that he should be their custodial parent. However, the court awarded custody to the guardians while providing the father with parenting time.
After the court decision, the father essentially dropped out of the twins’ lives and disappeared.
In 1995, the father prepared a will (“First Will”) naming his sister as beneficiary and explicitly disinheriting the twins, referring to them as “my illegitimate children”. The First Will stated:
I have no desire to benefit my illegitimate children even if my sister… predeceases me, as they are well taken care of and I have absolutely no contact or association with them.
The Second Will was prepared when the twins were age 20, again explicitly disinheriting them using these words:
[T]hat my two children … not be included in this my Will due to the following reasons:
a) That they have not made any efforts to see me, contact me or even make me aware of their circumstances as they may be from time to time;
b) That they have been well looked after through their Mother’s Estate in the form of a $100,000 trust fund. … They should not need any further assistance from me, though I do still miss them and realize that the choice of where to live was not theirs.
The Second Will also required the executors and trustees of his estate to aggressively block any attempt by the twins to apply to vary it, authorizing them to deplete the entire capital of the estate, if need be, to do so. Specifically, the Second Will stated:
If this will is contested, I direct my trustees to litigate such contest and I authorize my trustees to encroach upon all the assets of my estate and all of the funds and resources therefrom in their entirety to litigate such a contest and to strenuously litigate such a contest.
The father died in 2017. His estate was worth almost $900,000.
The twins applied to court to vary the father’s will, arguing that he had a moral obligation to provide for them in the Second Will pursuant to s. 60 of the Wills, Estates and Succession Act, which provides:
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Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
The father’s estate executors and trustees argued that whether the father had made adequate, just and equitable provision for the twins was to be determined at the time of his death in October 2017. At that point, the twins were 31 years’ old and neither the twins nor the father had made any significant attempt to contact the other, despite being aware of each other’s existence. As such, the executors argued that the twins had not met the onus of showing that the father’s reasons for disinheriting them were not valid or rational. Finally, they argued that the father’s testamentary autonomy should be honoured by allowing him to dispose of his estate as he intended.
Court Varies Father’s Will to Provide for Twins
The court began by explaining that the seminal authority respecting variation of wills and a deceased’s duty to make adequate provision for the proper maintenance and support of a spouse or child is the 1994 Supreme Court of Canada decision Tataryn v. Tataryn Estate. The court stated that Tataryn protects not only the objective of the adequate, just and equitable provision for any surviving spouse and children, but also the testator’s testamentary freedom to dispose of his or her estate as he or she wishes.
However, the court concluded that, although the father had known about the twins and made statements under oath that he had “always wanted to be a part of my daughters’ lives”, he had chosen to take no steps to be a part of their lives either financially or as a father. The court found that he had not made an assertive attempt to meet his parental responsibilities out of bitterness for losing the custody battle. The court further observed that it was the same bitterness that led him to disinherit his twin daughters, whom he blamed for their estrangement. As such, the court concluded:
“His rationale for disinheriting the Twins is, I conclude, invalid, irrational, and not based on what a reasonable testator judged by contemporary community standards would or should have done. Indeed, the comments made about the Twins in both wills were unwarranted, cruel, and untrue. They were not what a judicious father in these circumstances discharging his moral duty to his children would have said or done, especially considering the Twins’ difficult upbringing and considering they were the only persons he owed a moral duty to….
I conclude that the [father] abandoned the Twins from the outset and he had a strong moral obligation to attempt to make up for his desertion of them in the Second Will. He owed a moral obligation to them and failed to meet it during his lifetime.”
As a result, the court ordered the variation of the second will in order that it make adequate, just and equitable provision for the twins. The court ruled that the twins were therefore each entitled to 35 percent of the father’s estate.
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Protecting your assets and ensuring your family and other loved ones are provided for in the future is not something most people want to think about. However, effectively managing your wealth and protecting your spouse, children, and your estate is something that everyone should do at some point to ensure that your express wishes are carried out.
An effective estate plan goes far beyond just creating a will. You should also consider securing other important legal tools including powers of attorney (for personal care and for property), trusts (including Hansen trusts if you have disabled children or other dependants), as well as the designation of beneficiaries on life insurance policies, pensions, and other key documents.
The best way to guarantee that your wishes will be carried out exactly as you would like them to is to consult with an experienced estate lawyer. At Campbells LLP in Oakville, our wills lawyers have been helping clients with Wills and estates matter since 1999. We will meet with you to help you clarify your long-term objectives and will create a personalized, effective estate plan designed to meet those goals. As your family grows or changes, we will ensure your estate plan is amended as required to ensure it continues to protect your ultimate objective.
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