In a recent court case in BC, a factually untrue, written explanation by a Will-maker for disinheriting a family member proved inaccurate and was ultimately ignored by the Court.

We have previously discussed Wills Variation generally  but to briefly summarize, in BC, biological children and spouses have the right to challenge a Will, asking the court to grant them a greater share of the estate, on the basis that the Will made inadequate provision for them.

In this bulletin, we address two specific questions clients often ask us about the variation of Wills:

• “Do my reasons for disinheriting this person matter?”
• “Is it a good idea to write down my reasons for disinheriting this person?”

Lawyers often recommend such a “Wills Variation Memorandum” (which we refer to as a “Memo”), because, if done correctly, a Memo can be an effective means by which the Will-maker can tell their story “from the grave”.

There are four key things to know about such Memos:

Memos are Not Essential

The Courts can uphold a disinheritance even if there is no written explanation, if there is other evidence to show that the Will-maker had sufficient grounds for the disinheritance. For instance, if there was family testimony or bank records to demonstrate that the disinherited child had already received substantial assets from the Will-maker before the Will-maker died, then the disinheritance would likely be upheld – this being the case despite that there was no direct evidence (such as a written memo) from the Will-maker.

Memos May be Helpful

The Memo is helpful to demonstrate that the reasons for disinheritance are valid and reasonable, and to draw attention to a justification that might otherwise be forgotten. If the parent knows, for example, that his/her other children are unaware of past financial assistance given to the disinherited child, the parent could draw attention to this in a Memo.

Memos May be Ignored

A Memo can, however, be disregarded by the Court. The general rule is that the justification must be “valid and rational” to be considered by the Court. If it is not, the Court will likely not acknowledge the reasons given by the Will-maker, as happened in the recent case of Sharma v Sharma Estate 2016 BCSC 1397, where the justification given in that Memo was factually inaccurate.

In that case, the Will-maker made a Memo declaring that the disinheritance of two of the Will-maker’s three children was because they had already received “plenty of monies” during the Will-makers lifetime, while the third child had not.

The Court found that that Memo was factually incorrect. The third child had in fact received significant financial assistance from the Will-maker, while the two disinherited children had not received as much – and one of them had received nothing at all. As a result, the Court deemed the Memo invalid and disregarded it, reversed the disinheritance of the two children, and eventually split the Estate more or less evenly between the three children.

Memos May be Counterproductive

Sometimes, a Memo can be counterproductive because it may make the Court more, rather than less, likely to vary the Will. For instance, consider the scenario where the parent has several justifications for disinheritance, but only includes one of the justifications in his or her Memo. If it turns out that the sole reason in the Memo is not factually accurate, then the Court may ignore all of the other, potentially valid justifications, on the basis that “if the parent had considered these as factors as justifying a disinheritance, the parent would have mentioned those factors in the Memo”. In that sense, it is possible that making an incomplete Memo may be worse than making no Memo at all!

Conclusion

A Wills Variation memorandum can be a useful tool to explain and justify a disinheritance. However, it is not always necessary and, if not properly done, could even end up being counterproductive. If a Will-maker is considering a disinheritance, he or she should obtain advice from an experienced estate lawyer, and make sure that any Memo produced is accurate and comprehensive. In addition, it is important to update the Will, and/or the Memo, whenever circumstances change.