Disinheritance has long been a subject replete with interest. Is it a doleful mishap, a strange whim rooted in spite, a tragedy, or is it just desserts and a shield by which elderly persons can impose good behaviour on their successors? Charles Dickens was fascinated with the subject. From Great Expectations to Martin Chuzzlewit, many of his tales include fabulously wealthy testators, parasitical and destitute minor relatives, wronged rightful heirs, family bonds eroded by greed, artifice and deception – and often, in the end, a just outcome. Similar to how the poignancy of this theme stirred Dickens’ readers, aggrieved disinherited parties are often so stirred, to put it mildly, that they commence all-out legal warfare – quenching their scorn with the costly and sometimes blackened bread of estate litigation.
From the testator’s point of view, there is no foolproof method of disinheriting a child. It certainly helps if the child is not dependent, is an adult, has no basis for expecting anything, and there is a forceful, probative reason for the disinheritance (i.e. “so-and-so didn’t let me see my grandchildren”). It might be a good idea for a testator to explicitly state that he or she is disinheriting a child, lest the child later make the argument that the omission was a slip-of-the-mind rather than deliberate disinheritance. The testator may also include a clause explaining the rationale, though this can be dangerous – disinheriting someone out of racism (Spence v. B.M.O. Trust Company,  O.N.S.C. 615 at paras. 49-50).
Some drafting solicitors may suggest giving a small, nominal amount to the otherwise disinherited child – to partially appease the child, appear more moderate to a judge, or otherwise “save face”. The problem with this, however, is that as soon as someone is a beneficiary, he or she may be able to invoke beneficiary rights, such as objecting to the passing of accounts.
As for disinherited children, they may have legal recourse, such as section 58(1) of the Succession Law Reform Act, which gives the court discretion to determine if “adequate provision” has been made for a testator’s “dependants”. In Tataryn v. Tataryn Estate,  2 S.C.R. 807, the Supreme Court overturned the explicit disinheritance of a son and wife because it found that the testator failed his “moral obligation” to provide for them. If a dependant support claim leads nowhere, a disinherited child can always challenge the will, for the wellspring of arbitrary disinheritance is often incapacity or undue influence.
It is hard to lose a parent. Hard, too, is the loss of an inheritance. Keeping this in mind, testators who wish to prevent a conflagration of litigation might opt not to light the spark of disinheritance. If they feel the circumstances demand it, however, they should work with their estate planners to fortify their legal positions against the storms which might otherwise gather.
Thank you for reading,
Suzana Popovic-Montag and Devin McMurtry
Here’s a problem that was hardly imaginable a couple of generations ago. Sperm, ova or embryos are preserved for future use. The donor (or one of the donors) dies, but the preserved sperm, ova or embryo is used to conceive a child after the donor’s death. Does that child have rights under the donor’s estate plan?
The right of a child, conceived prior to but born after a parent’s death, is clearly established at law. However, the rights of children conceived after the death of a parent are less clear. Most jurisdictions have consistently denied inheritance rights to a child conceived with genetic material from an anonymous donor. However, where the donor is known, some experts argue that the contingent interest of a child conceived posthumously is equivalent to that of a child conceived prior to a parent’s death.
Enter the importance of a clear estate plan. Assuming the donor has provided written consent to posthumous use of their genetic material (which is a legal requirement in Canada), without instructions regarding a time limit for use, the estate trustee must decide whether to distribute the assets and exclude the potential unborn child, or to suspend distribution until the stored materials have been used or destroyed.
In short, it can get complicated and litigious if the estate plan is unclear. For that reason, it’s important for those who have stored genetic material – or whose beneficiaries have stored genetic material – to clearly address their intentions in terms of how potential biological children (or grandchildren) are to be treated.
One of our recent issues of The Probater https://hullandhull.com/wp-content/uploads/2017/03/March_10_2017_Probater_proof.pdf explores estate concerns relating to fertility in more detail, and provides a checklist that can help cover off fertility issues in the drafting of a will.
For a review of the issues related to the need for written consent to use genetic material posthumously, this article https://www.shebbearelaw.com/can-a-spouse-use-stored-sperm-eggs-or-embryos-after-their-partner-dies/ reviews a recent British Columbia case and provides some excellent tips for those who have stored genetic material for future use.
Thank you for reading … Enjoy the rest of your day!
As previously blogged about by Natalia Angelini, the All Families are Equal Act was introduced on September 29, 2016 and it was unanimously passed by the Ontario legislatively assembly on November 29, 2016.
We encourage those interested in this new Act to click here for the Ministry of Attorney General Newsroom release. According to the Ministry,
“The new law will:
- Provide greater clarity and certainty for parents who use assisted reproduction to conceive a child
- Provide a streamlined process for the legal recognition of parents who use a surrogate, together with requirements meant to protect the rights of all parties through independent legal advice and confirmation of the surrogate’s consent both before conception and after birth
- Reduce the need for parents who use assisted reproduction to have to go to court to have their parental status recognized in law.”
Thanks for reading!
Last month, an amendment to Minnesota’s Uniform Probate Code came into effect to limit the rights of children conceived after the death of one or more parents.
The addition under 524.2-120 of the Code states as follows (at Subdivision 10):
Notwithstanding any other provision of this section and subject to section 524.2-108, a parent-child relationship does not exist between a child of assisted reproduction and another person unless the child of assisted reproduction is in gestation prior to the death of such person.
The exception at section 524.2-108 provides that a child conceived before and born after death, who survives for a period of 120 hours, shall be treated as if living at the time of death of the deceased. However, the update in the legislation clarifies that a child conceived after death does not constitute a child and would not, therefore, be entitled to related rights to inherit on intestacy or as a member of a class of beneficiaries created under a will.
In many other jurisdictions, including Ontario, there is limited clarity with respect to the rights of individuals conceived after death of a parent. While the Succession Law Reform Act specifies (under the definition of “child” at section 1) that a child conceived before and born after death will be treated as if he or she had been living at the time of death of a parent or other family member, the same cannot be said of posthumously-conceived children with any certainty.
In certain circumstances, a surviving spouse may have the right to use genetic materials, being sperm or ova of the deceased spouse, to conceive a child in accordance with the terms of the Assisted Human Reproduction Act. However, there is no legislation in Ontario that explicitly provides or denies children conceived after death status as a child, as if conceived or born after death. Case law in other jurisdictions suggests that inheritance rights to a parent’s estate and entitlement to death-related benefits may be more likely to attach to a child conceived after death if (1) a genetic relationship between the deceased parent and child exists, (2) consent is given to the posthumous use of genetic materials for conception, and (3) the evidence available suggests that the deceased agreed to support a child conceived using the preserved genetic materials.
As rates of assisted reproduction continue to increase, it will be interesting to see how this area of estate law develops in Ontario to address the issue of rights of posthumously-conceived children.
Thank you for reading and have a great weekend!
Listen to The Surviving Spouse
This week on Hull on Estate and Succession Planning, Ian talks about an interview he did this week for a new website called Law is Cool and why he podcasts.
Ian and Suzana discuss the importance of preparing for the death of a spouse or for the welfare of your spouse upon your death. This preparation includes having a good idea of the assets you share and the importance of appointing a guardian for your children.
BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – WHAT TO DO ABOUT ABUSE CLAIMS? – PART III
As is sometimes the case, an unequal distribution of an estate as between children can arise from a testator who has had a long history of mental illness, chronic alcoholism or other such personal reasons, which may affect the testator’s state of mind over a period of many years.
For example, if a child who has been treated unequally grew up in a home where he or she suffered through instances of physical violence, as between the parents and him or herself, this may be the type of fact situation to consider when looking to pursue a claim for breach of fiduciary duty of parental obligations. Similarly, if the unequally treated child lived in a home that was constantly in turmoil, as a result of a chronically alcoholic parent, this situation should also be considered in the context of the fiduciary obligations of a parent.
In our view, one must find several compelling supporting facts to bolster any claim of breach of fiduciary duty or breach of parental obligation. Such facts should also be combined with a clear and identifiable estrangement as between parent and child.
In the decision of M. (K.) v. M. (H), the Supreme Court of Canada considered the whole concept of what is meant by the term "parental obligation".
The Court considered this issue in the context of a particularly gruesome and egregious set of facts.
In M.(K.) v. M.(H.), the Supreme Court of Canada examined the parent-child relationship in the circumstances of long-standing allegations of incest and abuse by a parent to a child.