The British Columbia Supreme Court recently refused to vary a mother's Will that left only a token $10,000 to an estranged son. In Brown v. Pearce Estate, the challenged Will read in part:
"I wish to leave no more than the $10,000 referred to above to my estranged son...Although I have sacrificed for him and I have supported him over the years, he has refused any contact with me, and...he has made it clear that he wants no further relationship with me."
The son asked the Court to vary the Will, claiming that the mother owed him a moral duty to provide more than the $10,000 gift. The Court considered the facts carefully, and declined to order a variation.
In his reasons for judgement, the learned Mr. Justice Kent noted that in a claim under the Wills Variation Act, an estrangement may either negate or enhance the moral obligation of a parent to provide for a child, depending on the circumstances.
In the circumstances of this case, the Court "found as a fact that it was the plaintiff and not his mother who created and perpetuated the estrangement" between them. In particular, the Court noted:
- The plaintiff gave evidence of his childhood, detailing neglect and verbal and physical abuse. This conflicted with other statements he had made prior to the trial, including a loving note declaring his parents to be "perfection" and "role models" for him.
- The plaintiff's reason for not contacting his mother from 1995 through to her death in 2012 was that he claimed he did not know her phone number or address. The Court did not accept this as a reasonable explanation on the facts.
- The plaintiff's son saw the deceased regularly, through the plaintiff's ex-wife. The plaintiff's son and ex-wife clearly had the deceased's contact information.
- The ex-wife had told the plaintiff that the deceased wished to have contact with him, but the plaintiff refused to contact the deceased.
The Court therefore concluded that the deceased's reasons for disinheriting her son were valid and rational, and demonstrated on the evidence. The Court upheld the Will.
While denying a variation, this case does not change the interpretation or application of the principles underlying the Wills Variation Act. Indeed, it is established law that a testator is within their rights to effectively exclude an adult child if the facts demonstrate that the estrangement and lack of contact was attributable to the child, and not to the parent.
This case was decided under the Wills Variation Act because it was commenced before WESA came into force. However, given that the relevant provisions in WESA are largely the same, we can expect similar considerations in assessing the reasons for an effective disinheritence under the new legislation.
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