Disinherited children win big in Alberta and B.C. courts 

Bigger estates and blended families are a recipe for will challenges from disinherited adult children, but their chances of success depend largely on where they live.

In the recent case of Pascuzzi v Pascuzzi, B.C. Supreme Court Justice David Crossin varied the will of a man who left his entire $1.8-million estate to his new wife. Crossin ordered 30% of the proceeds to be paid to the man’s 32-year-old daughter from a previous relationship.

Vancouver lawyer James Zaitsoff said scenarios like Pascuzzi are increasingly common in the province’s courts, thanks in part to the massive intergenerational transfer of wealth under way.

“Estates tend to be worth more money nowadays, and more people are willing to take a shot at making a claim,” said Zaitsoff, head of the estate and trust litigation group at Legacy Tax + Trust Lawyers. “When blended families are involved or you add step children into the mix, it brings up a lot of the interpersonal issues that are the fodder for estate litigation.”

Such factors are not unique to B.C., but Zaitsoff said the province is especially attractive for independent adult children claimants. That’s because its Wills, Estates, and Succession Act gives courts the authority to alter wills that do not adequately account for maintenance and support of the testator’s spouse or children.

Judges are then empowered to divide the estate however they think is “adequate, just and equitable in the circumstances,” based on a review of the testator’s legal and moral obligations to the plaintiff. Similar provisions can be found in estate laws in Nova Scotia and Newfoundland and Labrador.

According to Justice Crossin’s decision, Michael Pascuzzi’s 1996 will originally provided for a life-insurance funded trust that would pay his daughter $450 per month until she was 19 if he died before then. The court also heard the father agreed his daughter should “get something” during discussions with his new wife about an updated estate plan. However, the 1996 will wasn’t changed before the father died in 2019, leaving his daughter with nothing.

Although the judge found all parties shared in the blame for the Pascuzzis’ complicated relationship, Justice Crossin made the variation in the daughter’s favour after concluding her father owed her a moral obligation, and there were “no circumstances that negate the existence of these moral obligations.”

In most other provinces, where testamentary freedom is traditionally treated with greater deference, judges would be unlikely to reach the same decision, said Rebecca Kennedy, an estates lawyer with Toronto firm Adair Goldblatt Bieber LLP.

“The important distinction is that in provinces like Ontario, you have to qualify as a dependant of the deceased to get this kind of result, whereas the language of the B.C. statute does not require that,” Kennedy said.

For example, minor children and spouses of the deceased are the most common claimants under provisions of Ontario’s Succession Law Reform Act that allow dependants of the deceased to claim against the estate when they were inadequately provided for in the will.

Adult children with disabilities may also be eligible for dependant’s relief, as a recent case from Alberta, Campbell v Ensminger, shows.

The 53-year-old plaintiff was an adopted daughter of the deceased and had little contact with her father in the years before he died in 2017. Her disabilities left her unable to work.

Although the testator was unaware of his daughter’s status as a dependant, the judge found she was entitled to support from the estate. The judge ordered that two gifts worth $80,000 her father had provided to non-profit organizations be cancelled and rerouted to her.

Testators set on disinheriting their adult children in B.C. can boost the chances a court will honour their wishes by including valid, rational reasons for the move in their will, Zaitsoff said. Parents could also distribute assets to their favoured beneficiaries while they are still alive, since the will variation provisions only apply to assets left in the estate when they die.

Michael McKiernan

Michael is a freelance legal affairs reporter who has been covering law and business since 2010.