April 2021
In the recent case of Jung v. Poole Estate, 2021 BCSC 623, the BC Supreme Court decided in favor of disinherited daughters in their wills variation claim under the Wills, Estates and Succession Act, S.B.C. 2009. c. 13 against the estate of their father, the Deceased.
In 1986, the Deceased had twin daughters with a woman he was dating, but never married. Prior to the twins’ birth, the Deceased had suggested the mother terminate her pregnancy, which the mother strongly opposed. The twins’ mother raised the twins on her own without any involvement or financial assistance from the Deceased. Their mother sadly passed away when the twins were just four years old. In their mother’s will, she appointed her close friends, the Fandricks, as their joint guardians. The twin’s maternal grandmother, along with the Deceased, sought joint custody of the twins over the Fandricks.
A few months before the custody trial, the Deceased met the twins for the first time. They developed a positive relationship and the Deceased’s position at trial was that he should be their custodial parent. He told the Court that “he was prepared to do whatever it took” and that he was “keenly and genuinely interested in the Twins and wanted to be involved in raising them”. However, the Court ruled in favor of the Fandricks being their custodial parents, but provided the Deceased with generous parenting time because the Court recognized that he sincerely wished to be a father to the twins. The Court also ordered that the Deceased was to be consulted on decisions affecting major areas of the twins’ lives including education and health.
Despite the Court’s accommodations granted to the Deceased and contrary to his position at trial, the Deceased disappeared from the twins’ lives. He resurfaced one year later to request that the twins visit him in Vancouver because his mother was dying, but this request was denied by the Fandricks due to concerns of the five-year old twins having to relive their traumatic experience with the death of their mother. Although the Fandricks’ address and phone number were readily available to the Deceased, this was the last contact either the Fandricks or the twins had with the Deceased.
The Deceased prepared two wills during his lifetime, both being made after the custody trial and both explicitly disinheriting the twins. The first will was made when the twins were nine years old and contained the following provision referring to them:
- “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.”
His second and final will, made when the twins were 20 years old, contained different language, but had the same intended effect:
- “[T]hat my two children, Chelsea and Courtney not be included in this my Will due to the following reasons:
- That they have not made any efforts to see me, contact me or even make me aware of their circumstances as they may be from time to time;
- That they have been well looked after through their Mother’s Estate in the form of a $100,000 trust fund. … They should not need any further assistance from me, though I do still miss them and realize that the choice of where to live was not theirs.”
The Deceased also went a step further to ensure that the twins were disinherited by adding:
- “If this will is contested, I direct my trustees to litigate such contest and I authorize my trustees to encroach upon all the assets of my estate and all of the funds and resources therefrom in their entirety to litigate such a contest and to strenuously litigate such a contest.”
Since he had no spouse or other children, he left his entire estate, valued around $900,000, to two of his close friends. In their claim, the twins, now aged 34, raised the issue of the Deceased owing them a moral obligation and to provide for them in his will.
The leading case on moral obligations owed to a spouse and children is Tataryn v. Tataryn, [1994] S.C.R. 807. In Tataryn the Court noted “most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow. While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made”.
In Jung, the Court analyzed the Deceased’s reasons for disinheritance and stated:
- “[29] The validity of the testator’s reasons for disinheriting an adult child is based on fact. The rationality of his reasons must consist of a logical connection between the facts and the act of disinheritance.
- …
- [31] Estrangement is a factor, amongst others, to be considered in determining if the testator has a moral obligation. An adult child’s decision to have no contact with the testator can be rational ground for disinheritance… If the lack of a relationship between a testator and his/her child was the testator’s fault, as opposed to mutual estrangement, a moral duty can be found and can intensify if the testator rejects the child’s efforts at reconciliation…”
It was evident in Jung that the Deceased’s reason for disinheriting his daughters was his loss at the custody trial. The Court held that “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”. He also blamed the twins for their estranged relationship, however the Court held that his “views of the matter were neither valid nor rational”.
In order to make the will adequate, just and equitable, the Court awarded each daughter 35% of the Deceased’s estate with the remainder going to the original beneficiaries of the will. The Court reiterated its rationale for the variation being that:
- “[63] 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.”
While Courts aim to give effect to a Deceased’s testamentary intentions, there can be competing legal or moral obligations that must be considered, as there was in this case. Before disinheriting a child or spouse from a will, these obligations should be discussed with a legal advisor.
If you have questions about your estate plan or would like to discuss a wills variation claim, contact our Estate Planning and Litigation Group.
 | Fanda Wu Associate, Estate Planning & Litigation Group & Family Law Group Lindsay Kenney LLP – Vancouver Office |
 | Jasmin Chohan Articling Student Lindsay Kenney LLP – Vancouver Office |
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.