Important Considerations for the Disinheritance of Children

When planning their Wills, parents usually consider what they want to bequeath to their children. However, occasionally, a parent does not want to leave anything to a particular child. Testators seeking to disinherit their child must be aware of the significant risk that a court will intervene if they attempt to write out someone who has a potential legal or moral claim to their Estate.

In Campbell v Ensminger[1], despite finding that Gabriel Hodosi (the “Testator”) had capacity to instruct and sign the Impugned Will (defined below) and was not under undue influence in its preparation; the Alberta Court of Queen’s Bench cancelled two specific non-profit corporate gifts to comply with section 93 of the Wills and Succession Act[2] (the “Act”).

Facts

The Testator was married to Marlene Hodosi (“Marlene”) from the early 1970s until they separated and divorced in 1986. During his marriage to Marlene, the Testator adopted her daughter, Shealand Campbell (the “Plaintiff”), as a six-year-old child in 1974. The Plaintiff, who was 53 at the time of this lawsuit, has a child, Dorian Campbell (“Dorian”), a grandson of the deceased.

The Testator retained Wilton Thorsteinson (“Thorsteinson”) in late 2015 to draft a Last Will and Testament. A Will was signed on January 8, 2016 (the “First Will”). Under the First Will, the residue of his Estate was to be divided three ways between Marlene, the Plaintiff, and Dorian.

In August 2017, the Testator contacted Thorsteinson for the express purpose of having a completely new Will prepared. Thorsteinson met with the Testator three times for the process of drafting the Impugned Will. Thorsteinson testified that he had no concerns that the Testator was deluded in any way as it related to the nature of his assets or beneficiaries.

As the Testator wished to include specific bequests to Thorsteinson, another lawyer was retained to perform those instructions. Accordingly, Lawrence R. Gordon, Q.C. (“Gordon”) was retained, and the Will of September 11, 2017 (the “Impugned Will”) was executed by the Testator. Gordon assessed the Testator and concluded that the Testator knew what he was signing in terms of the Will. Additionally, Gordon had no concerns about the Testator’s capacity and was satisfied that he was freely and voluntarily dealing with his Estate without undue influence.

The beneficiaries named in the Impugned Will are not family members of the Testator but rather individuals who were important to him, such as the building manager who took care of his major asset for years, his accountant, his lawyer, and his friend who spent time with him recreationally. Additionally, the Impugned Will included specific bequests to two non-profit companies. Finally, the residue was bequeathed to Theresa Zeidell (building manager), Curtis Ensminger (accountant), and Thorsteinson.

Issues

The Plaintiff brought a claim against the Testator's Estate for proper maintenance and support under the Act and argued that her father was affected by undue influence and lacked capacity at the time the Impugned Will was signed.

The Plaintiff submitted that there were no others to whom the Testator owed a duty, either moral or legal, other than herself. In addition, the Plaintiff affirmed that since a family member was unable to earn a livelihood by reason of physical disability, the Testator failed to make adequate provisions for her proper maintenance and support. Thus, the Plaintiff applied for an order under section 96 of the Act directing an appropriate amount to be transferred from the Estate to her.

Analysis and Decision

Capacity and Undue Influence:

After concluding that the Impugned Will met the formal requirements of a Will, the Court proceeded the analyze and apply the legal standard for testamentary capacity. The court reaffirmed the test established in Banks v Goodfellow (EngQB), as described by Laskin JA in Schwartz v Schwartz, 1970 CanLII 32 (ON CA):

The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property[3].

The Court concluded that the Testator was aware of the value of his Estate, was conscious of the amount of taxes that his Estate would have to pay, sought legal advice and accounting advice, and weighed it in light of all his instructions and gave those instructions accordingly. Regarding the undue influence claim, the Court affirmed that no evidence was called that would show any one person or group of persons influenced the Testator unduly to change his Will. Accordingly, the Court concluded that the Testator had capacity in August and September 2017 to instruct and sign the Impugned Will and was under no undue influence in its preparation.

Family Maintenance and Support:

Regarding the claim for family maintenance and support, the Court discussed the principles elaborated in Tataryn v Tataryn[4] and affirmed that while the Act attempts to balance the interests of testamentary autonomy with the need to provide financial protection to surviving family members; neither of these values can outweigh the other. Further, while possessing a wide-ranging discretion, an award under the Act should consider the legal obligations of the deceased towards the family and have regard for the moral obligations of the deceased. However, what is “adequate” must be measured against contemporary community standards, having regard to what “a judicious person would do in the circumstances, by reference to contemporary community standards[5].

Nevertheless, it is essential to remark that the extent to which all the legal and moral claims can be met will depend on the size of the estate. On the other hand, because there is no longer any need to provide support for the deceased, the surviving family members may be entitled to more than the support they would have received during the deceased’s lifetime.

In this case, the Court affirmed that although the beneficiaries named in the Impugned Will were not family members, they were individuals who were very important to the Testator. However, the Plaintiff was the only person who had a statutory legal and moral claim to the Estate. Therefore, the Court reviewed the factors outlined in section 93 of the Act and concluded that only the factors outlined in sections 93(a) to 93(e) and 93(h) were relevant to the case at bar.

The Testator did not know of the Plaintiff’s recent status as a “dependent” and her lack of ability to support herself. Their relationship was a father and daughter one, but there was little or no contact between them for years, leading to his death. Accordingly, the Court cancelled the two specific non-profit corporate gifts; and ordered that the entire residue plus the amounts reduced from the two specific bequests be designated to the Plaintiff after all other costs and expenses of the Estate are taken into account.

Main Takeaway

Many people have a misconception that it is the law that they must bequeath their estates to their children and treat all children equally in their Will. Despite being a strong cultural tradition that children inherit from parents, a testator has broad testamentary freedom.

Whether or not a parent would be successful in disinheriting a child depends primarily on whether the child is a minor or a dependent adult. Children who fall into those two categories are likely to be considered financial dependents of the parent and have a potential legal or moral claim to the testator's estate.

If you wish to discuss the above please contact any of the members of our Wills & Estates Team. We would be happy to talk through your estate planning needs with you.


[1] 2022 ABQB 330

[2] SA 2010, c W-12.2

[3] supra at note 1 at para 96.

[4] [1994] 2 SCR 807

[5] supra at note 1 at para 108