Mother Disinherits Children Without Reasons - Court Awards Twins $125k and $75k

Hancock v. Hancock, 2014 BCSC 2398

The testatrix had 5 children and left a will detailing that her estate was to be given entirely to her daughter, Marnie, which effectively disinherited her 4 sons.  Two of her sons, Brian and Robert (twins), had received nothing under the will and brought an action to vary her will as they felt it did not make adequate provision for them. 

Brian and Robert’s mother had left her entire estate to their sibling, Marnie.  Their other siblings were also excluded from the will, but remained neutral.  Marnie defended the claim as it was her position that the Plaintiffs had received gifts from their parents while they were living and this satisfied any moral or legal claims they might have against the estate.  Their mother had not left any reasons within the will for why she had given the entire estate to Marnie and no written evidence was found outside the will.  She had indicated to her lawyer that she did not want reasons in the will.  It had been suggested to her that she make a sign in writing, but she never provided her lawyer with any written reasons on this issue. 

Their mother did have a previous will which divided the estate equally among her five children.  This will had been replaced by the will drafted in 2002 which appointed Ernest, the eldest, as executor and Marnie as the sole beneficiary.  It mentioned that if Marnie were to pre-decease her, the estate would devolve equally among the four sons. 

The value of the estate was ~ $500,000

HELD:    Variation allowed. 

The court confirmed that the date of death is the appropriate date at which to assess the value of the estate – Graham v. Chalmers, 2010 BCCA 13.   

The court followed Tataryn and Dunsdon v. Dunsdon, 2012 BCSC 1274 in coming to their decision measuring the moral claim owed by a parent to an adult independent child

The court found that a judicious parent in their mother’s circumstances would have recognized a moral obligation to each of the children, which was not negated by the gifts made to them during her life. 

The court only varied the will to the extent required to provide justice to Robert and Brian in that the will failed to achieve, commensurate with the moral obligations to her children. 

The court looked at the relative financial circumstances of Robert, Brian, and Marnie at the date of their mother’s death and the values of various properties transferred to the children.  The moral obligation owed to Robert and Brian was not equal – Robert made greater contributions to his mother and a lifetime commitment, and Brian was in a superior financial position.  The court varied the will providing $125,000 to Robert and $75,000 to Brian.


[57]        The essential question in this case is whether the Will made adequate provision for the plaintiffs who were disinherited by their mother. The circumstances existing at Mrs. Hancock’s death, as well as those that were reasonably foreseeable to her at that time, are to be taken into consideration to determine whether she has made adequate provision: Mawdsley v. Meshen, 2010 BCSC 1099 (CanLII) at para. 317, aff’d 2012 BCCA 91 (CanLII); Eckfordv. Vanderwood, 2014 BCCA 261 (CanLII) at para. 53.

[58]        It is uncontroversial that neither the plaintiffs nor Marnie have any legal claim against the estate. I turn to address the moral claims of the plaintiffs.

[59]        Applying the Tataryn principles, the size of the estate in this case is such that some provision should be made for the plaintiffs unless there are circumstances that would negate such an obligation.

[60]        Marnie opposes any variation in reliance on the principles enunciated in Bell and Kelly. For the reasons that follow, I am of the view that those principles do not assist Marnie.

[61]        It is important to appreciate that the only assets Mrs. Hancock held at the time the Will was executed in 2002 were her interest in the Dorothy Road Property and two bank accounts. Mr. Dewdney has no independent recollection of discussing the value of her assets with her, nor is there any indication in his file materials that such a discussion took place.

[62]        It can reasonably be inferred, on the preponderance of the evidence, that in 2002, the amount of funds Mrs. Hancock held in her bank accounts was relatively modest, in the approximate range of $25,000. I accept Ernest’s evidence that his mother never believed the Dorothy Road Property to be very valuable because of problems associated with mould, ants, a challenging sewage system, and the proximity of a boat launching ramp. I find, on the totality of the evidence, that as of 2002, and based on a prior cancelled listing, Mrs. Hancock believed that the value of the Dorothy Road Property was in the range of $240,000 to $300,000. Notably, at the time of her death, she had knowledge that the value of the Dorothy Road Property had significantly appreciated, as it sold for $1,400,000.

[63]        The Bell/Kelly model of inquiry and the subsequent appellate authorities that have applied that analysis are predicated on an express statement having been made by a testator as to the reasons for disinheriting a claimant and/or for the distributions made in a will. The pertinent authorities do not endorse the court “conducting an open-ended roving inquiry of the circumstantial evidence to ascertain whether a testator’s plan has a valid and rational basis”: Wilson v. Lougheed Estate, 2010 BCSC 1868 (CanLII) at para. 397.

[64]        As I noted earlier, there is neither a statement in the Will of Mrs. Hancock’s reasons for disinheriting the plaintiffs nor any evidence of any written statement regarding those intentions. I will next consider whether any express reasons are ascertainable on the evidence.

[65]        I have found that it was not Mrs. Hancock who spoke with Ms. Fletcher in November 2001. Nonetheless, if I am incorrect in that regard, I am not persuaded that the statement “apparently the sons have all taken parts of the land and she wants her daughter to have everything she owns on her death” constitutes a reliably ascertainable reason for Mrs. Hancock changing her will. At best, it may amount to some evidence about how Mrs. Hancock wished to change her will. Crucially, it does not provide any insight or explanation as to why she chose to disinherit her sons, given that, at the material time, Marnie had also received an interest “in the land”, namely a 50 percent interest in the Dorothy Road Property.

[66]        Secondly, Mrs. Hancock told Ernest in 2002 that she was changing her will because she thought the boys had been “fairly well looked after” and she wanted the remainder of her estate to go to Marnie. It can reasonably be inferred that in 2002, Mrs. Hancock believed that Marnie had not been looked after. However, in any event, to the extent Mrs. Hancock’s statement to Ernest constitutes cogent evidence of her reasons for changing her will in 2002, and to the extent that Marnie’s counsel asserts there were valid and rational reasons for Marnie to be preferred in the Will because – unlike her brothers Marnie had not been “looked after” as of 2002 – I conclude that these reasons were not valid as of the date of Mrs. Hancock’s death in 2011. In 2007, Marnie had in fact received $683,000 from the sale of the Dorothy Road Property in addition to the $20,000-$25,000 her mother had gifted her. The evidence supports a finding that Mrs. Hancock was surprised and embarrassed by the amount proceeds of the sale of the Dorothy Road Property. I accept Ernest’s evidence that Mrs. Hancock told him that, given that Marnie had received half of the net sale proceeds, Marnie had been “well taken care of”.

[67]        In his written opening, Marnie’s counsel postulated that the valid and rational reason for the exclusion of the plaintiffs from the Will was that they had received inter vivos gifts of real estate from their parents and that was “as far as the analysis need[ed] to go”. I am not persuaded that there is any merit to this submission. At the time of the Will’s execution, all five Hancock children had received inter vivos gifts of real estate. These gifts, in and of themselves, cannot be regarded as a valid and rational reason for Mrs. Hancock disinheriting four of her five children within the Bell/Kelly paradigm.

[68]        All matters considered, I am not persuaded that the analysis formulated in Bell and endorsed in Kelly is engaged in this case. However, as noted above, even if it were, the reasons were not valid and rational as of the date of Mrs. Hancock’s death.

[69]        In my view, this case turns on a determination of the nature and extent of the moral obligation Mrs. Hancock may have owed the plaintiffs and whether it has been negated. The question that lies at the heart of this dispute is whether, having regard to all the circumstances, Mrs. Hancock’s testamentary disposition falls within the range of adequate provision made by a judicious parent, assessed objectively by reference to contemporary community standards.

[70]        Marnie submits that Mrs. Hancock’s decision to exclude Robert and Brian from the Will was entirely consistent with the decision of an objectively judicious parent. She contends that the inter vivos gifts the plaintiffs received were sufficient to satisfy any moral obligation she may have owed to them.

[71]        As a starting point in this analysis, I note that the weight of the authorities establishes that the law imposes no requirement that children be treated equally by a will-maker. The fact that an independent adult child has not received the same provision under the will as the will-maker’s other child or children, will not, of itself, constitute a breach of the will-maker’s moral duty: Dunsdon at para. 136; McBride at para. 134; Doucette v. McInnes, 2009 BCCA 393 (CanLII); Price v. Lypchuk Estate (1987), 1987 CanLII 165 (BC CA), 11 B.C.L.R. (2d) 371 (C.A.).

[72]        The jurisprudence also establishes that the court may consider the gifts outside the will to determine whether the will-maker has fulfilled his or her obligations. Depending on the circumstances, a will-maker’s moral duty may be diminished or negated entirely where he or she has made inter vivos gifts to a  claimant; McBride at para. 133; Doucette at para. 84.

[106]     In its search for contemporary justice, this Court must have in mind whether adequate provision has been made for the plaintiffs. Viewing the facts of this case objectively, as of the date of her death, a judicious parent in Mrs. Hancock’s circumstances would recognize a moral obligation to each the plaintiffs, which was not negated by the inter vivos transfers to them. To the extent that Marnie asserts that Mrs. Hancock’s gifts of $20,000 in 2008 to each of Robert’s two adult daughters and Brian’s three adult daughters extinguished her respective moral duties to the plaintiffs, I reject that submission.

[107]     The statements Mrs. Hancock made to Lorna, as well as those she made to Robert directly, and to Ernest, as referenced above, may be interpreted as demonstrating that Mrs. Hancock recognized, at least to some degree, the moral duty she owed to Robert and Brian. Although relevant in the overall analysis, this is by no means determinative of whether this Court should exercise its discretion to vary her testamentary disposition. Indeed, as the Court observed in Dunsdon, in the vast majority of cases when a court finds a testamentary disposition to be inadequate and varies a will, it does so in the face of a will-maker’s contrary intention: Dunsdon, at para. 190.

[108]     In weighing the totality of the evidence, and having regard to the relevant legal principles, I conclude that Mrs. Hancock did not discharge the moral obligation of a contemporary judicious parent. Mrs. Hancock’s disposition of her estate did not fall within a range of options that could be considered appropriate in the circumstances. She failed to make adequate provision for either Brian or Robert.

[109]     It is not the function of this Court to re-write Mrs. Hancock’s will. Rather, it is incumbent on this Court to vary the Will, only to the extent required to provide the justice to Robert and Brian that the Will failed to achieve, commensurate with Mrs. Hancock’s moral obligations to her children.

[110]     I have considered the relative financial circumstances of each of the plaintiffs and Marnie as of the date of Mrs. Hancock’s death. While I have also considered the relative values of the various properties transferred to the Hancock children, the assessment of the residual moral duty owed to the plaintiffs is not amenable to an arithmetical calculation.

[111]     Considering all of the circumstances, I cannot conclude that Mrs. Hancock owed an equal moral duty to the two plaintiffs. Given Robert’s overall contributions and his lifetime commitment to his mother and Brian’s superior financial circumstances, I find that a variation which provides the bequest of $125,000 to Robert and $75,000 to Brian is an adequate, just, and equitable provision.