Estate Litigation: Morality & Wills Variation (Part 1)

Grounds for Wills Variation 

Morality, and specifically community standards of morality, are not static concepts and they often evolve as communities embrace diversity and inclusiveness. Competing ideas of what is “moral” are often at the heart of wills variation and estate litigation claims where a deceased person may wish to punish his or her potential beneficiaries whom they believe may not share their own standards of morality.

A remedy for disinherited children & spouses

Section 60 of the Wills, Estates and Succession Act provides a remedy for disinherited children and spouses to apply to the court to have a will varied to make a provision for them that is “adequate, just and equitable.” Although the word morality does not appear in this section, the moral values of the Deceased are often explained by their gifts (or lack thereof) to beneficiaries that they considered immoral. In the decision of Peden v. Peden, Smith et al., 2006 BCSC 1713 (CanLII), the Court determined that a parent’s disapproval of a child’s sexual orientation was not sufficient grounds in today’s community standards to justify disinheriting a beneficiary. The Court made the following comment:

Homosexuality is no longer a factor for disinheriting

[55]           It seems clear from the evidence of Smith that the real reason for the testator  treating the plaintiff differently was the plaintiff’s sexual orientation.  There is even pre-Tataryn authority that homosexuality is not a factor in today’s society justifying a judicious parent disinheriting or limiting benefits to his child.  (See Patterson v. Lauritsen  (1984), 1984 CanLII 353 (BC SC), 58 B.C.L.R. 182, [1984] 6 W.W.R. 329)

[56]           I agree with and endorse the conclusion of Justice D.M. Smith in the decision Ryan.  I find it applicable here, where there is no such “logical connection” or “valid and  rational” reasons for an unequal distribution, and where “contemporary standards create a  reasonable expectation of children sharing equally in a parent’s estate.”

Related Information:

• Leaving Estate Only to Sons in Will: Equality & Law in BC Wills Variation
• The Five W’s of Wills Variation in BC
• 4 Things to Know About Challenging a Will in Vancouver

Contact a Wills Variation & Estate Litigation Lawyer in Vancouver

If you have been left out of a will or believe that you have not been treated fairly, please contact the Kushner Law Group at 604-629-0432 or contact us online today to schedule a free consultation.