Court overturns father’s decision to disinherit daughters

According to a recent Supreme Court of British Columbia ruling, Poole’s most significant contribution to the twins’ early years was his suggestion to their mother that she get an abortion.

Apart from a brief spell of close contact following the death of their young mother when the twins were four years old, the decision said Poole had virtually no involvement in their lives, and he cut them out altogether when he lost an ugly custody battle with the deceased mother’s chosen guardians.

Indeed, Poole’s final will — signed in 2006 — explicitly disinherited Jung and Backous, instructing his executors to “strenuously litigate” any challenge from the twins, even if they drained the estate in the process.

However, Justice Gary Weatherill refused to let Poole abandon his daughters in death as he had done during his life, concluding that Poole owed a moral obligation to provide for them in his will.

“The Deceased was simply not prepared to accept or move on from [the custody] decision and disinheriting the Twins, even though they were completely innocent bystanders, was his way of getting even,” the judge wrote in his April 7 decision. “His rationale for disinheriting the Twins is, I conclude, invalid, irrational, and not based on what a reasonable testator judged by contemporary community standards would or should have done. Indeed, the comments made about the Twins in both wills were unwarranted, cruel, and untrue.”

As a result, Justice Weatherill varied the will and redistributed the estate, granting each of Poole’s daughters 35% of the funds, with the remaining 30% split between the two friends originally intended as the sole beneficiaries.

The ruling barely made a ripple in B.C., according to Vancouver lawyer Trevor Todd, a fixture of the province’s estate litigation bar.

“In B.C., this kind of decision makes perfect sense, because it’s been the law for over 100 years,” said Todd, a sole practitioner with almost five decades of practice behind him. “But I appreciate that it does send the rest of Canada a bit crazy to think that an adult independent child can bring a will variation claim. They’ve got this notion from England that you should be able to do what you want with your own money after you’ve died.”

The case turned on section 60 of B.C.’s Wills, Estates, and Succession Act (WESA), which gives the court the authority to alter wills that do not adequately account for the maintenance and support of the testator’s spouse or children. Judges are then empowered to divide the estate whatever way they think is “adequate, just and equitable in the circumstances.”

The WESA is just over a decade old, but the will variation powers were imported from another piece of legislation that had been on the books since 1920. Similar provisions can also be found in laws governing estates in both Nova Scotia and Newfoundland and Labrador.

But in most other provinces and territories — including Ontario, where testamentary freedom is almost sacrosanct — will-makers may have less trouble cutting an adult child out of their estate.

According to Suzana Popovic-Montag, managing partner at Toronto estate law boutique Hull & Hull LLP, it’s unlikely an Ontario court would have reached the same result as the B.C. court in the Poole case.

Although Ontario’s Succession Law Reform Act does provide a mechanism for children to challenge a parent’s will, it only applies to dependants of the deceased who were inadequately provided for, she said. Typically, that limits claimants to minors or adult children living with disabilities.

“There’s a financial-needs underpinning to the test, so you can’t hang your claim exclusively on moral obligations, as seems to be the case in B.C.,” Popovic-Montag said.

Kim Gale, principal at Toronto estate litigation firm Gale Law, said there are pros and cons to each province’s approach to disinheritance.

“Testamentary freedom and the certainty that comes with it are very important in Ontario, and there is a feeling that if you make it too easy to challenge a will, then the floodgates will open,” she said.

But on the flip side, Gale said, many practitioners were uncomfortable with the Ontario Court of Appeal’s 2016 decision in Spence v. BMO Trust Company, a case that reinforced the primacy of testamentary freedom by upholding an allegedly racist will against a challenge from the testator’s daughter.

Both parent and child were Black, but the court refused to admit evidence suggesting the father had written his daughter out of the will because she had a child with a white man.

“It’s a tough issue. I can see why people would want to have some way to step up and argue that something was done unfairly or out of spite,” Gale said.

Despite the result in the Poole case, courts will not always overturn a testator’s wishes to disinherit a child in B.C., said Janis Ko, an estate litigator with Onyx Law Group in Vancouver.

“It’s important to have very clear reasons for disinheritance, and that [the reasons be] valid and rational. If the child is to blame for an estrangement, then that could be fine,” she said. “But if the will-maker caused the estrangement, then the trend is that the court will order a variation.”

Poole’s friends — who stood to inherit the estate without the intervention of the twins — argued at trial that the will should stand because the children had made just as little effort to build a relationship as their father had, even after they were grown up.

However, the court found that it made more sense for the twins not to track down their father before his death than it did for Poole to cut them out of his life.

Following the death of the twins’ mother from pneumonia complications in 1990, four years after she had given birth, Poole first met his children and began to bond with them. He told the judge hearing the twins’ custody trial that he would do whatever it took to become their custodial parent.

But when primary custody was awarded to a couple who were friends of the twins’ mother, Poole failed to exercise any of the parenting time he was granted.

“I conclude that the Deceased’s abrupt reversal in direction and his decision to ignore the Twins was driven by bitterness and ‘sour grapes’ in losing the Custody Trial,” Weatherill wrote in his decision. “The Deceased’s views of the matter were neither valid nor rational.”

Whatever the reasons for their estate planning decisions, testators are best served by consulting a professional, said Fanda Wu, an estate lawyer at Vancouver firm Lindsay Kenney LLP.

“A lot of people try to do it on their own based on a Google search. They’re not thinking about the moral and legal obligations they might owe to any of their beneficiaries,” she said. “It’s always better if you can plan in advance and settle things before you pass, rather than having your family fighting after your death.”