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Disinheriting family can lead to big legal costs for your heirs

This week, my niece married the love of her life. The day after the wedding, they hopped on a plane to San Jose, Costa Rica, for their honeymoon. It was a very early morning flight. Everything went well at the airport, and the flight left on time. There was just one problem: When they landed in San Jose, they discovered they were in San Jose, California, not Costa Rica. Turns out there's a subtle difference between "CA" and "CR" when booking flights online to San Jose. They didn't know what they didn't know, and the mistake cost them a full day of honeymoon time and about a thousand bucks.

There's an analogy to estate planning here. Many folks don't know what they don't know when it comes to wills, and often make decisions that can cost the family thousands, and a lot of hurt as well. I'm talking about disinheriting a child.

The issue

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There is no shortage of court cases on the matter of a child being left out of a last will and testament. And you'll find court decisions landing on the side of the child, and others on the side of the estate. I will say this: Fighting a deceased parent's estate to change (known as "varying") the will is not simple, will surely be expensive and is most likely to cause stress and damaged relationships in the process.

The law that comes into play here is different depending on your province, so you'll need to get advice from a local lawyer. British Columbia, for example, has the Wills Variation Act (WVA). The WVA gives dependents more ammunition to challenge a parent's will than you'll find in most provinces. The WVA in B.C. talks about adequate provision for the proper maintenance and support of a spouse and children, and extends to not just legal obligations for support, but moral obligations as well.

In other provinces, the claim of a financially dependent child (or spouse, sibling or parent; this list can vary by province) might succeed, but claims based on the argument of a moral obligation to provide support seem less certain. The concept of "testamentary freedom" suggests that a deceased person should be able to distribute his or her estate in whatever manner he or she sees fit. It's a common legal principle. But there are exceptions.

The cases

Consider the case of Tataryn v. Tataryn. The Supreme Court of Canada (SCC) had to rule on whether the testator (deceased person) had a legally enforceable moral duty to provide for the proper maintenance and support of a surviving spouse and children. The SCC ruled that a testator's autonomy to dispose of his property must yield to his spouse and children's entitlement to adequate support from the estate. Now, this was a B.C. case, so the SCC had to consider the wording of the WVA.

Another case is Cummings v. Cummings, an Ontario case in which the Ontario Court of Appeal allowed for the recognition of a moral claim against an estate, not just a financial needs-based claim. In this decision, the judge said: "In my view, these questions have been resolved by the decision of the Supreme Court of Canada in Tataryn v. Tataryn. There, the court held that a deceased's moral duty towards his or her dependants is a relevant consideration on a dependants' relief application … I see no reason why the principles of Tataryn should not apply equally in Ontario, even though they were enunciated in the context of the British Columbia Wills Variation Act …"

Since the Cummings decision, however, there is the Ontario case of Verch Estate vs. Weckwerth. In this case, the judge ruled – on the surface, in contradiction to the Cummings case – that a parent's moral obligation to his or her children does not qualify the children as dependents. Some lawyers would suggest that if the arguments put forth by the children in this case had been different, they might have won. Clear as mud?

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In another case, it became evident that you can't disinherit a child for reasons that violate public policy. In particular, Ontario judge C.A. Gilmore overturned the last will and testament of a man, Eric Spence, because his wishes were racist. Mr. Spence had disinherited his daughter who gave birth to a white man's child.

The bottom line? Disinheriting a child – or any dependant – can have significant repercussions that can cost your heirs big legal fees and hurt relationships. Your wishes might ultimately be disregarded. Make sure you obtain good legal advice in your province before disinheriting someone.

Tim Cestnick is managing director of Advanced Wealth Planning, Scotiabank Global Wealth Management, and founder of WaterStreet Family Offices.

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