Estrangement & Wills Variation

Estrangement & Wills Variation in BC Law

Separation, Abandonment, or Estrangement & the Testator’s Moral Duty

The Wills Estates and Succession Act (“WESA”) provides children of a deceased person with a legal right to sue on their estate and vary a will. One of the circumstances where this situation arises is when an adult child has been estranged from the parent and thus the parent has decided to completely leave them out of the will. While estrangement itself is not always a sufficient reason for a Court to uphold the decision of a testator to disinherit their children, Courts will look to the facts of the case to determine the reason for the estrangement.

An estrangement that was the fault of the parent may in fact strengthen the moral claim of the disinherited child.  In Brown v. Pearce Estate, 2014 BCSC 1402, the Court made the following comments:

132. In the early development of the case law, a long period of separation, abandonment or estrangement between a child and testator was frequently, though not invariably, taken to militate against finding a moral duty to an adult child.  The 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’s moral duty, and may even enhance it.  The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children: Gray   v. Gray Estate, 2002 BCCA 94 (CanLII), 98 B.C.L.R. (3d) 389,Doucette v. Clarke, 2007 BCSC 1021 (CanLII), 35 E.T.R. (3d) 98 [Doucette]; Tomlyn v. Kennedy, 2008 BCSC 331 (CanLII), 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53 (CanLII), 21 E.T.R. (3d) 285; P.S.G. v G.G. Estate, 2005 BCSC 1855 (CanLII); Ryan.

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From small claims to the supreme court, the Kushner Law Group in Vancouver B.C. has extensive experience representing clients in wills variation, civil litigationmediation, and negotiations.

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