Reasons for disinheritance:

It may be the case that a testator wishes to explain or justify their bequests.  Section 5 of the Wills Variation Act provides that the court may accept reasons for making dispositions and disinheriting certain parties to the will as evidence.  If a testator provides reasons within their will or codicil that are found to be “valid and rational” for the disinheritance, then the court will not interfere (Berger v. Clark, 2002 BCCA 316).  The reasons must be based on true facts along with being logically connected to disinheritance to be qualified as “valid and rational” (Kelly v. Baker, (1996), 15 E.T.R. (2d) 219 (B.C.C.A.)).  The party making the application carries the burden of proving that the testator's reasons are not valid or rational.  

The case of Petrie v. Burnett [2008] B.C.J. No. 2094 is an example of where a testator provided reasons in their will but the court found that they were not "valid or rational".   

Al Burnett died on April 21, 2005 after recently being diagnosed with pancreatic cancer.  He had originally drafted a will in 1982, but on his deathbed he executed a new will which effectively disinherited his four adult children.  The new will provided that all of his property was to be left to his friends, Walter and Anne Petrie, and provided reasons for disinheriting the children.  Mr. Burnett's estate was worth approximately $460,000.**  There had been issue as to the validity of the new 2005 will given his condition, but the court later deemed it valid.  The will was drafted with the following provision that included the reasons for disinheritance:

"I have specifically excluded all of my children from inheriting through this my Will as some years ago I provided to my children loans which have never been repaid to me.  Further, my children have made no attempt to correspond with me no provide me any comfort during my later years of life.  However, Walter Gordon Petrie and Anne Petrie have provided much care and companionship to me.  I trust my children will abide by my last wishes."

There was evidence given at trial that showed that the references to unpaid loans and that the children had not provided comfort or correspondence were false.  The court found the reasons that Al Burnett provided were not valid or rational and substituted provisions to provide a distribution of 35% of the estate to the son and 12.5% to each of the daughters (the third daughter was not involved in the proceeding).  

 

It is an ugly truth that testators may use their will as a way to have the last word of a conflict or exert a final insult.  Fortunately, the Wills Variation Act is able to help prevent certain injustice. 

The Wills Variation Act is a lesser known piece of legislation which ensures that aggrieved children and spouses of the deceased have a course of action.  Reasons in a will may be helpful in discovering a testator's intentions and the WVA ensures they are monitored to prevent injustice.  

 

**With additional properties valued at $300,000 and the two daughters had separate claims that resulted in each of them receiving a 25% interest in them.