Much has been written in our blogs and in other Estate blogs of  how  the application  of the British Columbia Wills Variation Act can result in changes to  a Will that the deceased thought would distribute his or her assets after death.

In layman’s terms, the situation in British Columbia has sometimes been summarized as  “you can’t disinherit an adult child unless he or she effectively abused or completely cut off  the parent for no good reason.”  While in fact there is a strong element of truth to this observation, the court reality is far more nuanced in that  “abuse” or “cutting off” have to be fully analyzed within the context of a longstanding and complex familial relationships.

The fact is, not every Will can be varied, and disinheritance of a child has always been permitted in British Columbia if the child’s conduct has been so reprehensible so as to justify exclusion.

But how have  our courts actually arrived at determining which  situations of disinheritance are valid? In a decision issued this year, Mr. Justice D.A. Halfyard dealt with this issue in a carefully reasoned decision referred to as Holvenstot v. Holvenstot.

The case makes for interesting reading as it deals with a number of commonly raised estate issues including the gifting of property by a parent to an adult child; secret trusts; and the Wills Variation Act.  We would commend reading the case for the legal analysis as well as an interesting fact pattern.

A mother had disinherited her son for a host of reasons, some of which were considered accurate and others not. The Court determined that  the reasons for disinheritance that were true included:

a) the  son  planted marijuana on the mother’s property which led her to being convicted of possession and placed on probation;

b) the son tried unsuccessfully to have the mother declared mentally incompetent by a court;

c) the son sought a court order to compel his mother to have contact with him against her wishes; and

d) the son tried to get ownership of land owned by his mother which required her to bring legal action to have the contract cancelled.

With respect to Mr. Justice Halfyard’s consideration of the Wills Variation Act, we commend reading His Lordship’s analysis commencing at paragraph 127.  Essentially the Court held that the above  reasons were accurate and were logically connected to the act of disinheritance.  Having determined both accuracy and relevance to the disinheritance, the Court then went on to look at whether the mother’s decision of disinheritance had to be subjected to a further “objective test”  of whether or not the  disinheritance met the  standard of what a ” judicious” parent would do in the same circumstances.

Now this is where the careful consideration of  previous decisions comes into play and the discussion will likely be of interest only to estate lawyers as the discussion is quite detailed and turns on whether the judicious parent test is still applicable and if so how is it to be applied.

The broad point that emerges is that Mr. Justice Halfyard concluded that in deciding whether a testator’s reason is rationally connected to the decision to disinherit, it would be sufficient that a judicious parent  COULD have made that decision, not that a judicious parent WOULD have necessarily made the decision.

Under the circumstances, the Court was particularly concerned about the son’s unsuccessful  legal action to have his mother declared mentally incompetent and other litigation all of which cost the mother dearly.  As such, the Will was upheld as was the disinheritance.

The result of this decision may be for lawyers to be arguing in subsequent cases that the pendulum has swung a little more in favour of testamentary freedom and a little away from judicial variation.  No doubt subsequent decisions and ultimately our Court of Appeal will have another look at whether this case, by embracing the “could have made the decision” test, has made any real shift in the law.

In the blogosphere and media some lawyers are  arguing that in fact this case represents a shift away from a  previous test which made it very hard to disinherit, while others do not see any real practical distancing from the time-honoured principle that given the right circumstances, a parent certainly is free to disinherit their adult child without interference from a court.