Be nice – you can be disinherited

It is difficult to disinherit your children in British Columbia, even if you have good reason to do so, but the recent case of Kong v. Kong confirmed that, at least in some circumstances, it is possible. This decision should be reviewed by anyone interested in proper and effective estate planning for parents of more than one child.

Most people speaking to a lawyer about their estate plan for the first time are surprised that in B.C. the spouse or child of a will-maker can challenge the distribution set out in the will in court after the person dies. That law is set out in Part Four, Division 6 of the Wills, Estates and Succession Act (formerly called the Wills Variation Act).

The provisions set out that the will-maker must “make adequate provision for the proper maintenance and support” for the will-maker’s spouse and children, within the will-maker’s capability. In wills variation cases, the court’s role is to strike a balance between the requirement in the statute, summarized in case law as the “moral obligation”, and the principle of “testamentary autonomy”—that is, the inherent right of an individual to decide how to arrange his or her affairs.

What constitutes “adequate provision” and “proper maintenance”, balanced with the recognition of testamentary autonomy, has been the subject of a great many lawsuits amongst siblings over the years. Generally, the court prefers a parent to treat their children equally unless they have valid reasons to depart from that. However, the outcomes of these cases range across a broad spectrum.

The Kong decision involved the post-death distribution of the fortune of Shui Ping Kong, the patriarch of the Kong family. Shortly before Mr. Kong died, he transferred a piece of real estate to his youngest son. Mr. Kong’s last will (the Will) also left Mr. Kong’s other assets to his youngest son. When Mr. Kong died, he was survived by seven children, four of whom brought a lawsuit to vary his will in their favour.

In hearing the Kong case in the Supreme Court of British Columbia, Madam Justice Sharma noted there was no statement in the Will as to why Mr. Kong disinherited six of his seven children. Justice Sharma also made an objective inquiry into the reasons for disinheriting the children referring, as necessary, to community standards.

She accepted evidence that some of the children had been estranged from their father for some years before his death and therefore he had no “moral obligation” to them. After reviewing the reasons for the estrangement, the Court concluded the father was relatively blameless.

Prior to this case, the family had gone through an earlier litigation over committeeship of the children’s mother, who was in care after being diagnosed with dementia in 2006. (A committeeship is a common method of establishing protection for a vulnerable adult deemed by medical professionals as being incapable of managing him- or herself. Committees are appointed by the court, typically with input from the family.)

The eldest son opposed the father’s attempts to be appointed the mother’s committee because he did not consider his father capable given his age, physical and mental condition, and “not understanding Canadian culture and law sufficiently.” This son then brought a successful petition to become his mother’s committee. The decision to grant control of the mother’s affairs to the eldest son was unsuccessfully appealed by the father. These lawsuits created a rift in the family as factions formed supporting and opposing the father’s and eldest son’s efforts.

At the time of the wills variation lawsuit there remained an outstanding legal dispute between the father’s estate and the eldest son, who maintained control of some of the mother’s assets. The father did not attend the mother’s funeral. Again, there was a dispute about this with one side saying the eldest son planned the funeral without  notice to the father and the other side saying one of the sons declined to bring the father to the funeral.

The Court also noted other details, such as the disinherited children being unaware of their father’s cell phone number or that he even had a cell phone—suggesting they had been “inconsistent” in their claims of having a good relationship with the father.

It also found that the disinherited children were not in financial need, which lessened any remaining “moral obligation” their father owed to them.

In her reasons, Justice Sharma upheld the father’s decision to disinherit two of the five children, including the eldest son, and awarded a five per cent share of the father’s estate to two other children. Two of the other children disinherited were not involved in the lawsuit and did not receive a variation in their favour.

The Kong case is an excellent example of the questions our courts wrestle with in balancing the right of the will-maker’s spouse and children to be treated equitably and the deference our society gives to testamentary autonomy. It also raises issues that will-makers and drafters need to consider to try to avoid issues like this being raised in court.

For more information on matters involving wills and estate law, please contact Darren.