Section 60 of WESA makes it possible for the court to refuse a claim to vary a will made by a person whose character or misconduct, in the opinion of the court, disentitles him or her to such relief. In other words, a court may decline to vary a will to enable a disinherited child to receive an inheritance if the court finds that the child has exhibited such character or behaviour towards their (now deceased) parent that they do not deserve to have the will altered in their favour.
The behaviour of that child is assessed during their lifetime, including around the time of the parent's death, rather than after the death.
The behaviour must be relatively severe and directed at the testator in order to justify the disinheritance.
In assessing the claims of a disinherited child the court must balance various responsibilities including the will-maker's reasons for disinheriting the child and the deceased parent's moral obligation to make adequate provision in their will for an adult child. On the one hand the court wants to respect the testator's wishes but the court has discretion to assess whether those wishes are valid, reasonable and based on fact, not a skewed understanding or misapprehension.
An important source of evidence is any written explanation left by the testator justifying their decision to exclude an adult child. The quality of that evidence may also be important. 'Quality' of the evidence refers to the weight that the court is likely to give to that evidence. For example, if there is documented evidence that the disinherited adult child had attempted to have the parent declared 'incompetent' when it was inappropriate to do so (testing showed little to no cognitive problems) this would likely be given more weight by the court than a series of verbal allegations of say, abuse, that cannot be proven one way, or the other. If however there is clinical or physician evidence available to the court which could back up the allegations of abuse by the child, towards its parent (emergency room records, x rays, doctors' notes, photographs of bruising) this would speak volumes in persuading the court the deceased parent's wishes to disinherit their child were valid and rational.
Essentially the court must weigh the evidence of all the circumstances from which any inference may be drawn on the accuracy or otherwise of the evidence.
The frustrating fact is the truth may never be known – but it is the court's job to decide on a balance of probability what is more likely to have occurred.
For further details and a review of the leading case law in this area please refer to the continuation of this article "Disinheritance for Bad Behaviour – Part 2. If you find yourself needing to defend a will or challenge an unfair will, give us a call on 250 689 1172 and ask Angela Price-Stephens to give you at least preliminary advice to protect your rights and or identify your obligations.