"I think it breaks new ground. Where a parent is going to disinherit and in their mind they have good reason,
the court is not going to interfere." TOM FINKELSTEIN
courts being asked to grapple with the competing concepts of "testamentary autonomy" and "moral obligations" to provide for adult children in your will. Although B.C.'s statutory scheme is unique in Canada, the decision in Hol- venstot may signal an increased reluc- tance to vary a will when a parent has provided a legitimate explanation for disinheriting a child. "I think it breaks new ground,
The ruling was the latest example of
Tom Finkelstein, a lawyer in Courte- nay who successfully represented the defendants in Holvenstot. "It moves away from the judicious-parent test," indicating a shiſt to one that is more
" says
subjective. "Where a parent is going to disinherit and in their mind they have good reason, the court is not going to interfere.
vourable province for a disinherited child launching a claim for a portion of a parent's estate because of its Wills Variation Act. The statute, which came into effect in 1920 in part because of lobbying by women's organizations, permits courts to "make adequate pro- vision" for the support of a testator's spouse and children. The
Still, B.C. is probably the most fa- "
Court of Canada, in 1994's Tataryn v. Tataryn Estate, interpreted the B.C. statute as including a moral obligation
Supreme
even to independent children. "While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obliga- tion, some provision for such children should be made,
McLachlin in the unanimous decision. The basic principles behind the deci-
" wrote Justice Beverly
sion in Tataryn have been accepted in other provinces, including Ontario, even though no similar statute has wording that could be explicitly applied to claims by independent children. In its 2004 decision in Cummings v.
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