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Challenging and Defending a Will that Disinherits a Child

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byPaige E. Van de Sype, Associate at McKercher LLP onApril 21, 2021

Being cut out of a will is not, on its own, enough to successfully challenge a will. Learn what the law says about wills that disinherit children from associate lawyer Paige E. Van de Sype from McKercher LLP.

If a person dies intestate, the legislation directs that their estate will be payable to their spouse and/or their children.[i] This principle of usual or natural bequests is also considered at common law when assessing capacity, i.e. whether the deceased understood who would reasonably expect to share in the estate.[ii] Even so, people retain the right to depart from this proclivity and they often do.

Being cut out of a will is not, on its own, enough to successfully challenge a will. There needs to be other indicia that support findings of a lack of capacity, lack of knowledge and approval, and/or undue influence. While not determinative or exhaustive, a court should consider the following in assessing the suspicious circumstances surrounding the making of a will:

  1. The extent of physical and mental impairment of the testator around the time the will was signed;

  2. Whether the will in question constituted a significant change from the former will;

  3. Whether the will in question generally seems to make testamentary sense;

  4. The factual circumstances surrounding the execution of the will; [and]

  5. Whether a beneficiary was instrumental in the preparation of the will.[iii]

If suspicious circumstances are established, then the propounder of the will must respond with evidence to negate the suspicious circumstances, which could include detailed estate planning notes from a lawyer, verbal or written communication of the will-maker’s intentions in advance, an understandable reason for the disinheritance and any other evidence of their capacity and independence from objective parties.

A parent’s reason for disinheriting a child should also be examined with a view to determining whether it is based on facts rather than impelling delusions, meaning a “belief in a state of facts which no rational person would believe” that causes the testamentary dispositions.[iv] This principle was very recently applied when a mother left her entire estate to one daughter and disinherited her other two children. Under her previous will, she had divided the estate equally amongst all three children.[v] The mother’s reasons for disinheriting the other two children was that (1) her son was well-off, did not need the money and was disinterested in her; and (2) that her other daughter had taken money from her and otherwise mismanaged her money, they had fought and were not speaking, that the daughter rarely visited her and was after her estate in the same way the daughter went after other relatives.[vi] The trial judge found these beliefs were “not simply unreasonable conclusions…. [The Mother] was convinced of a number of things… including their motives and behaviour, which had no basis in fact.”[vii] On a totality of the evidence, the will was voided.[viii]

In the rarest of cases, a will or provision of a will can also be voided on the basis of public policy. For instance, a court may find it contrary to public policy if a child was disinherited for: sexual orientation, race, religious affiliation, and interracial relationships.[ix] In British Columbia, the court recently varied a mother and fathers’ mirror wills that favoured their sons over their daughters because of the “influence of cultural values on the Parents’ choices”.[x]

If the challenger of the will satisfies the court at the initial hearing that there is a genuine issue for trial, then the matter will be directed to trial.

About the Author:

Paige is an associate in the Saskatoon office where she practices primarily in estate litigation and provides related services in estate planning, estate administration and guardianship or co-decision-making applications, while maintaining a general civil litigation and family law practice.

About McKercher LLP:

McKercher LLP is one of Saskatchewan’s largest, most established law firms, with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have helped our firm to rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2019/20). Integrity, experience, and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.

[i] The Intestate Succession Act, 2019, SS 2019, C I-13.2, s 5 – 6.

[ii] Otto v Kapacila Estate, 2010 SKCA 85 (CanLII) at para 33, 359 Sask R 84; Bachman v Scheidt Estate, 2016 SKCA 150 (CanLII) at para 19, [2017] 2 WWR 301.

[iii] Re Grosiak v Grosiak Estate, 2008 SKQB (QL) at para 18.

[iv] Re Grant Estate, 3 Sask R 135 (CanLII) (SKCA) at para 12, citing The Canadian Law of Wills: Probate, Thomas G. Feeney at pages 27 – 28, regarding voiding a will for impelling delusions, meaning a “belief in a state of facts which no rational person would believe” that influences the testamentary dispositions.

[v] Murdoch v Trueman Estate, 2019 SKQB 332 (QL) at para 3.

[vi] Murdoch v Trueman Estate, ibid at para 108, 115.

[vii] Murdoch v Trueman Estate, ibid at para 188.

[viii] Murdoch v Trueman Estate, ibid at para 190.

[ix] Grams v Babiarz, 2015 SKQB 374 (CanLII)at para 18 – 26; reasons for finding the matter to have merit upheld on appeal in Grams Estate v Grams, 2016 SKCA 12 (CanLII) at para 8.

[x] Grewal v Litt, 2019 BCSC 1154 (CanLII) at para 5, 207-208; however, this decision is grounded on the unique provisions in their provincial legislation: Wills, Estates and Succession Act, SBC 2009, c 13.

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