Enns v Gordon Estate, 2018 BCSC 705
In my Will, I can leave my belongings to anyone I choose, right?
That idea comes from the concept of “testamentary autonomy” and it is right, to an extent. However, the law of B.C. reminds us that every will-maker has a legal and moral obligation to make “adequate, just and equitable” provision for your spouses and children after your death. In many cases this extends even to adult children, and to spouses and children who are not financially in need. If they feel their gift in your Will was inadequate, your spouse or child may ask the court to vary the Will in their favor, by asking the court for a “wills variation”.
But what if I have a reason to not include a spouse or a child in my Will?
In some circumstances a will-maker can legitimately disinherit or restrict the amount
provided to spouses and children in their Will. The court will consider many factors to determine the moral duty owed to independent children. The B.C. case of Enns v Gordon Estate, 2018 BCSC 705 (“Enns“) provides insight into how, and to what extent, particular circumstances (in this case estrangements between a mother and adult children), permit the mother to restrict the amount willed to a child.
Examples from Enns
At issue was the mother’s $1,000,000 estate, and the portions she had left for her two adult daughters, Norma and Elizabeth. The Will gifted $10,000 to each of Norma and Elizabeth, made a few other modest gifts, and then gifted the balance to charities, with whom the mother did not have a specific connection.
Throughout the daughters’ lives their parents were strict and sought to control the intimate aspects of their lives. The court characterizes Enns as a case “driven by misunderstandings and estrangements created by parental efforts to either support or control the children’s living arrangements” [para 1].
In Norma’s case, the mother did not approve when Norma moved out of the parents’ house, called her disparaging names, did not approve of Norma’s chosen partner and refused to attend the wedding. Despite this, Norma maintained an on and off relationship with her parents for their entire lives and they had further financial dealings. The Court said:
…society would not reasonably expect a restriction to less than 1% of a $1.1 million estate for an adult daughter who gracefully fulfilled all her duties to her mother for 36 of 38 adult years, including having regular face to face and telephone contact, all in the face of several mean-spirited attacks on both her and her husband. This small percentage is outside the range of acceptable options. Put bluntly, the evidence indicates that her parents were not easy people to satisfy. But Norma generally made best efforts to do so. Her two-year estrangement was triggered by what could, from the perspective of a lay person, be viewed as an honest misunderstanding [para 101].
….[the mother’s] reasons were not rational….they did not reflect community standards, were completely out of proportion to the alleged offences, contained an element of spite, and failed to reflect actual existing conditions. [para 103]
The estrangement was almost entirely due to financial dealings
for Elizabeth with her parents. Her father lent her money to purchase a house, which was to be repaid at his request. Less than a year later the father demanded payment. Matters became very heated and Elizabeth did not speak to her parents for 15 years (half of their entire adult relationship). Elizabeth eventually reconciled with her mother shortly before her death. Elizabeth died soon after. Her estate brought the Wills variation claim on her behalf, but there was little evidence to tell her side of the story. The court observed:
…society would conclude that a judicious person could reasonably restrain a testamentary gift to a level in the range of that awarded here. This is particularly so where there is, unfortunately, little evidence available to explain the basis for Elizabeth maintaining such a long estrangement…. [para 106]
The court rejected the mother’s reasons
for leaving such a small amount to Norma, and awarded her 40% of the estate. For Elizabeth, the court found that the moral duty to provide for her was negated by the estrangement, and upheld her $10,000 gift.
Lessons from Enns
So, what do we learn from the difference in awards to Elizabeth and Norma? Not all estrangements or reconciliations are equal. The length of estrangement affects the outcome. The reasons for disinheritance must be valid and rational, and they must also accord with community standards; i.e., you cannot completely disinherit a child due to one slight or insult. In Enns the court decided that it was reasonable based on community standards to disinherit Elizabeth for an extended estrangement, but the facts surrounding Norma were different.
As the ultimate goal of creating a Will is to ensure that your wishes are upheld, please consult our experienced Wills and Estates team for advice.