The recent decision of Kong v. Kong confirms (and not for the first time) that in some circumstances the court will support the decision of a parent to exclude an adult child from their will entirely, and deny a claim under BC wills variation legislation. In this case the court disallowed the claims of two disinherited sons, and allowed two others only a 5% share of the estate.
A few observations from this case:
- Hostile conduct by the child and failing to accept reconciliation when offered can negate the parent’s moral duty to the child.
In this case the evidence showed that one of the sons who was excluded from the father’s will treated his parents harshly in relation to a sale of a residence that they shared; the same son later made strong allegations about the father in the context of a legal dispute over their mother’s estate. These actions angered and offended the father. Nevertheless, the father reached out in his final days and asked the son to visit him in the hospital. The son refused the invitation. The court found that this behavior negated any moral obligation the father may have had to the son.
- Even where a variation is allowed, the will-maker’s wishes remain influential.
Sometimes people wonder whether leaving a modest gift to an estranged child is more likely to preclude a successful wills variation claim than leaving nothing to the same child. However, in this case the court said that the will-maker’s clear intent to leave everything to one child meant that in the two instances where it allowed variation, the variation ought to be minor.
- In considering whether a will-maker’s reasons for disinheriting were valid and rational, the court will consider all of the circumstances, not just direct statements made by the deceased.
The claimants tried to argue that evidence of their actions in respect of the father, including in the context of the prior family litigation, should be excluded. They wanted the court to consider whether the father’s decision was “valid and rational” only on the basis of the evidence of what the father had said to his lawyer. The court rejected this approach, stating:
The implication of the plaintiffs’ position in this case would be to limit the court’s analysis to the testator’s expressed, and therefore subjective reasons, rather than making an objective inquiry into the reasons for disinheriting grown children with reference, as necessary, to community standards. In my view the plaintiffs’ approach amounts to excluding important evidence about the testator’s relationship with his grown children.