People often put together estate plans while they are alive in order to ensure that their property goes to the people they want it to, and conversely, to ensure that property does not go to people who they do not want it to go to. In a recent situation before the Supreme Court of British Columbia, twins who had been disinherited by their father challenged his will, stating they had a right to his estate after he died.
Father has little contact with children
The father and the mother were involved in a dating relationship during which the mother became pregnant. The father had raised the possibility of terminating the pregnancy, which was something the mother did not want to do. The mother gave birth to twins in 1986, and began to raise them on her own without any involvement from the father.
The mother and twins moved to the North West Territories in 1986, but died in 1990, when the children were just four years old. She left a will which stated a family she had developed a close friendship with would be guardians of the children in the event of her death.
The children’s maternal grandmother and the father sought custody of the children, but the mother’s wishes in her will were upheld. The father was granted scheduled opportunities to visit the children, but with one exception, didn’t have any contact with them following the custody hearing.
Father’s will disinherits the children
The father prepared a will in 1995 (“the first will”) which named his sister as his beneficiary, explicitly disinheriting the children, who he referred to as his “illegitimate children.” His will stated,
I have no desire to benefit my illegitimate children even if my sister… predeceases me, as they are well taken care of and I have absolutely no contact or association with them.
He prepared a second will in 2006, again explicitly disinheriting his children. It went further, though, tasking his new beneficiaries (two friends) to “aggressively block” any attempt by the children to vary his will.
When the father died, his estate was worth close to $900,000. The children challenged the father’s wills, stating he owes a moral obligation to provide for them in his second will.
Did the father have a moral obligation to the children?
The court referred to several decisions from British Columbia before stating that a parent’s moral obligation towards their children starts on the day they are born, with that responsibility diminishing over time.
The court found that the father failed to meet that moral obligation, writing,
“The fact that he made it so clear in the First Will and the Second Will that the Twins were illegitimate, that he wanted no part of his estate to go to them, and instructed his executors to fight any attempt by them to vary his will, speaks volumes about his attitude towards them and his misguided and ill-conceived attempt to punish them for matters beyond their control. Despite being granted very generous parenting time, he failed and/or neglected to exercise any parenting time or to have anything further to do with his own children.”
The court ruled that the will should be varied, giving the children 70% of the father’s estate, split equally between them.
It should be noted that the laws in Ontario are not the same as those in British Columbia. In Ontario, a testator’s freedom to distribute their estate as they choose is more difficult to override in the courts, though it can happen on occasion.
If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.