Hergott: Moral obligations and your will

Lawyer Paul Hergott discusses wills and moral obligation

A recent court decision lists factors a judge considers when determining whether or not you have met your moral obligations to each of your children in your will.

The court decision, Trudeau v. Turpin Estate, 2019 BCSC 150 , deals with an attack of a mother’s will by two of four daughters who were left shares of only 5 per cent each.

All four daughters were independent, ranging in age from 56 to 68.

As a society, we long ago passed a law requiring the court to vary a will if the testator has failed to meet their legal or moral obligations. That law is now found in section 60 of the Wills, Estates and Succession Act [SBC 2009] Ch. 13 .

The judge in the Trudeau decision provided a list of six factors considered by the court when evaluating the strength of a testator’s moral duty to independent children. You should carefully consider these factors when making your own will.

I explained the first, “Contribution and Expectation”, in my last column.

The second is listed as “Misconduct/Poor character”.

Section 63(b) of the Wills, Estates and Succession Act, allows the court to refuse to vary a will in favour of a person on the basis of their character or conduct.

A previous case, McBride v. Voth, 2010 BCSC 443, explains that only misconduct up to the date of death (not after death) is considered, that the misconduct must be directed at the testator and also that it must be quite severe in order to justify disinheritance.

The court gave examples of cases where disinheritance was not justified. One was where a child was described as a disappointment overall. In another, the child was referred to as an “incompetent weakling”. And in another, the child had been unsuccessful in multiple business ventures and had been referred to as having difficulty “fighting the battle of life”.

A third factor considered by the court when evaluating the strength of your moral duty to a spouse or child is listed as “Estrangement/Neglect”.

The law has changed over time on this point. Historically, a long period of separation, abandonment or estrangement frequently reduced a parent’s moral duty to a child.

More recently, the court has been inquiring into and considering the role the parent played in the estrangement or relationship breakdown. If the relationship breakdown has been largely the fault of the parent, their moral duty to an estranged child might even increase, rather than decrease.

And childhood neglect can also serve to increase the parent’s moral duty to provide for that child in their will.

Family dynamics that lead to estranged relationships between parents and children are deeply painful and deeply personal. A lifetime of attempts to reach out to a child who consistently responds with abuse might be something you keep close to your heart and not share with anyone.

If you leave that child little or nothing and he challenges your will after you have died, how can the court fairly evaluate whether you have met your moral obligations if all they have is that child’s side of the story?

Even if you have journaled that history, and that journaling is something the court would consider, there’s bound to be a “he said she said” fight about that long and painful family history. How do you win such a fight if you’re not here?

And can you imagine all of that deeply personal and painful family history aired in a public trial?

Next week I will conclude this series with the remaining factors considered by the court when evaluating your moral obligations.

This area of the law is complex and I am able to provide only a very minimal glossing over of the subject matter in my column. Please obtain legal advice specific to your particular circumstances to ensure your testamentary intentions will best survive an attack, or to consider attacking a will where you have been unfairly dealt with.

Missed last week’s column?

Hergott: Contribution and Expectation of a will

Like us on Facebook and follow us on Twitter.

Just Posted

Splash of Red returns

The 8th annual Splash of Red fundraiser takes place Thursday, August 15 at the Caetani House in Vernon

Vernon society sends seniors, shut-ins on boat excursions

Okanagan Quality Life Society has been providing Okanagan Lake boat rides for nearly 30 years

North Okanagan-Shuswap MP meets with religious leaders

Discussion included effect of attestation requirement and other legislation on faith communities

Okanagan-Shuswap weather: cloudy, showers expected

Environment Canada is predicting a mix of sun and clouds tomorrow and a sunny weekend across the Okanagan

Bollywood Bang fundraiser for CMHA Vernon a success

CMHA received $33,922 from Bollywood event to support crisis line and youth programs

Rents in most Canadian cities are unaffordable for lower-income earners: study

Roughly one-third of households, or 4.7 million, are renters

Okanagan Basin Water Board continues call to protect B.C. waters from invasive mussels

The board is pushing for additional regulations from the government

Psychics, drones being used to search for missing Chilliwack woman with dementia

Drones, psychics, dogs and more have been employed to help find Grace Baranyk, 86

Summerland real estate agents handled many home transactions

Larry and Donna Young spent 40 years in Summerland housing market

Okanagan FC one win away from playoff berth

The Kelowna soccer club finishes their season with two home games

‘Benzos’ and fentanyl a deadly cocktail causing a growing concern on B.C. streets

Overdoses caused by benzodiazepines can’t be reversed with opioid-overdose antidote naloxone

Virtual reality, arcade gaming centre opens in Salmon Arm

Owner hopes to host city’s first Esports team for games like League of Legends, Fortnite

B.C. mom to go to Europe court in hopes of getting alleged abducted daughter back

Tasha Brown alleges her estranged wife abducted their daughter Kaydance Etchells in 2016

Scheer on Trump: It’s ‘offensive’ to question the family background of critics

Trump is being called a racist for saying that the four congresswomen should go back where they came from

Most Read