Vancouver Estate Litigation: Twin Daughters Disinherited by Estranged Father
Estate litigation often results due to a parent disinheriting one or more of his/her children. Section 60 of WESA permits disinherited children to apply to the Courts to vary a will to ensure that all of a will-maker’s children are left with adequate, just, and equitable provisions.
In the recent case of Jung v Poole Estate, 2021 BCSC 623, this issue was again brought to light. In this case, twin sisters (“Twins”) were the only children of their father who died on October 10, 2017, in Surrey at the age of 66 (“Deceased”). The Deceased left a last will and testament dated October 2, 2006 (“Second Will”) and an estate valued at $879,174.42; the Second Will explicitly disinherited the Twins. They applied to vary it under s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] by way of summary trial pursuant to Rule 9-7 of the Supreme Court Rules. The main issue in this case was the fact that the Deceased and the Twins did not have a relationship whatsoever. In fact, at all times, the Twins were raised by a single mother. Once the Twins’ grew older, despite knowing about one another, neither the Twins or the Deceased reconciled, reached out, or developed a relationship. In his assessment, Justice Weatherhill ruled in favour of the Twins awarding them 35% each of the Deceased’s estate. The Trial Judge made the following relevant comments:
[45] In addition to Tataryn, which I have canvased at length above, I have been referred to numerous cases where these principles have been considered and referred to in situations involving estranged adult children. I do not propose to review them all here. The ones that I have found particularly helpful in this case are: McBride; Brown; Enns; Tomlyn v. Kennedy, 2008 BCSC 331 [Tomlyn]; Gray v. Nantel, 2002 BCCA 94 [Gray]; McMain v. Leblanc, 2013 BCSC 891 [McMain]; Moore v. Drummond, 2013 BCSC 1762 [Moore]; Wilson v. Watson, 2006 BCSC 53 [Wilson]; Gordienko v. Gordienko, 2005 BCSC 1855 [Gordienko]; and J.R. v. J.D.M., 2016 BCSC 2265.
[46] The moral obligation of a testator to a child begins when the child is born. The law of nature leaves each child utterly dependent upon his or her parents during infancy and by extension, to childhood and later years in a diminishing capacity: Tomlyn, at para. 29.
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[50] I conclude that the Deceased’s abrupt reversal in direction and his decision to ignore the Twins was driven by bitterness and “sour grapes” in losing the Custody Trial. Instead of blaming himself for four years of abdicating his responsibilities as the Twins’ father and instead of following through with his statements to Justice Noonan that he wanted to be a part of the Twins’ lives as their father, he blamed the Twins for the estrangement. The Deceased’s views of the matter were neither valid nor rational.
[51] His bitterness is manifest in the First Will prepared in 1995, wherein he referred to the then nine-year-old Twins and dismissed them as his “illegitimate children”. This resentment of the circumstances surrounding the Twins continued into the Second Will eleven years later in 2006. The Deceased was simply not prepared to accept or move on from Justice Noonan’s decision and disinheriting the Twins, even though they were completely innocent bystanders, was his way of getting even.
[52] His rationale for disinheriting the Twins is, I conclude, invalid, irrational, and not based on what a reasonable testator judged by contemporary community standards would or should have done. Indeed, the comments made about the Twins in both wills were unwarranted, cruel, and untrue. They were not what a judicious father in these circumstances discharging is moral duty to his children would have said or done, especially considering the Twins’ difficult upbringing and considering they were the only persons he owed a moral duty to.
The lawyers of TRI-CITY LEGAL have experience in representing disinherited children. Remember, WHY you have been disinherited is rarely relevant. Contact us to learn more about your rights.