Good advice.

Good advice.

Are All Estrangements Treated Equally? The Estranged Case of the Gordon Sisters – Part 2

DBM Law Blog

Prior to her death, but after the estrangement with her daughters had ended, Mary visited her in-laws. Mary told her in-laws that “When I go, the girls will be in for a real shock, ha, ha, they don’t know that the house will be sold by the lawyer, and he will look after everything”. Her in-laws suggested that Mary revisit the terms in her will given that there had been a change in her relationship with both Norma and Elizabeth since the will was prepared. Mary told her in-laws that she would not change the will because that was what Albert wanted consider the grief that they caused him. During another visit with her in-laws, Mary suggested that if Norma and Elizabeth did not like the terms of the will, they could go to court, and it would not matter to her because she would be dead.

Mary wrote letters explaining why she was limiting her gifts. She recounted the particular grievances that lead to her estrangement with Elizabeth and on-going perceived injuries. She also discussed the estrangement with Norma and the circumstances that caused that rift. Mary later recounted that her daughters were back in her life and appreciated that they were with her when Albert passed. In each letter she consistently mentioned that she did not wish her will to be altered.

This lessened the weight given to Mary’s expressed reasons due to factual and logical flaws, the timing that the will was written (when she was estranged from both daughters), and her “stubborn” refusal to consider whether new facts altered her reasons.

The Court turned to a “logical connection” test from Hall v. Hall, 2011 BCCA 354 and stated that “in considering that proposition, it is not necessary to find the reasons were justifiable. It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance” The court then added something novel at paragraph 95:

But what seems to be missing in a bare application of a “logical connection” test is at least some degree of proportionality. For example, if an adult child on one occasion insulted the testator’s character, that could be argued to create a “logical connection” to a subsequent decision to disinherit. However, complete disinheritance would seem to be a vast overreaction to a single act of defiance. When this example was put to the charities, counsel conceded that when a court is considering whether expressed reasons for disinheritance were “rational”, it is entitled to resort to the concept of community standards, which standards might not be met in the case of disinheritance over a single insult.

In applying the Tatryn test and the Dunsdon factors, the court found that in regard to Norma, society would not reasonably expect a restriction to less than 1% of a $1.1 million estate for an adult daughter “who gracefully fulfilled all her duties to her mother for 36 of 38 years”. As a result, the court found that the will did not make adequate provision for Norma. Consequently, the will was varied in her favour.

Elizabeth, on the other hand, was “materially different”. She had been estranged for 15 of her 31 adult years and the reconciliation was initiated by others. Under the circumstances the court found that the Tatryn test was not overcome. Consequently the will was not varied in her favour.

As a result the Court gave 60% of the Estate to charities with the remaining 40% to Norma.

It is an example of how the court will treat a short-term and long-term estrangement as a reason for disinheritance

Lessons Learned

In Part 1, I discussed two questions that I would address:

  1. Can you still receive something from your parents’ estate, even though you were taken out of their will?
  2. Are all estrangements treated equally?

In British Columbia, the Wills, Estates and Succession Act (“WESA”) is the provincial parliamentary act that is used to determine what happens to an estate if someone dies after March 31, 2014 (when the act came into effect). Section 60 of WESA allows a court to alter (“vary”) a will, if a judge does not believe that the deceased made adequate provision for the deceased’s spouse or children. That is precisely the provision on which the Gordon sisters relied.

Regarding the first question, it is possible to receive something from your parents’ estate so long as you can convince a judge that you were not adequately provided for. This is where having a lawyer is helpful. A lawyer’s job is to put to put together your information and translate it into a story that will help convince a judge that you were not adequately provided for.

The Tataryn Test and Dunsdon factors are arcane tools used by lawyers and judges to apply the section 60 of WESA to your actual case. The lawyers at Drysdale Bacon McStravick LLP are adept at taking your story and couching it in those terms – terms that can convince a judge that you were not adequately provided for.

Regarding the second question, all estrangements are not treated equally. As shown in the case of the Gordon sisters, the duration (amongst other circumstances) matters. If your parents remove you from their will during a few bad years of an otherwise good relationship (like Norma’s case), then there is a very real possibility that a judge will vary the will. On the other hand, if you are estranged for a long number of years and don’t take initiative to reconcile a relationship (like Elizabeth’s case), then it is less likely that a judge would vary the will.

You can choose your friends, but you can’t choose your family. If anything, the case of the Gordon sisters teaches that even in difficult family situations there is value (monetary and otherwise) in maintaining a relationship with your parents. Even if you are estranged, reconciling the relationship is worth something in the eyes of a judge.

If you find that your parents removed you from their will during a rough patch in an otherwise normal relationship, then contact one of the experienced litigators at Drysdale Bacon McStravick to help you with your case.

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