Moving away from the judicious-parent test

Moving away from the judicious-parent test
Illustration:Peter Mitchell
The fifth and final will prepared by Patricia Luz Holvenstot divided nearly all of her assets among her three adult daughters. To her son, she left one cent. It was a decision with a detailed explanation. In the will, drafted in British Columbia three years before her death in 2000, she referred to another document in which she outlined a long list of complaints about the behaviour of her only son, dating back to when he was a teenager more than three decades earlier.

The allegations ranged from claims Bruce Holvenstot rarely read books or cleaned his room, to planting marijuana on family property, resulting in his mother being placed on probation for a year. The complaints, outlined in a six-page hand-written letter dated October 1993, also referenced ongoing proceedings in New Jersey, involving her son and one of her daughters and whether he had improperly tried to obtain her property. “The final straw was he tried to have me declared incompetent,” wrote Patricia Holvenstot, who moved from New Jersey to Courtenay B.C. in 1996 to live with one of her daughters.

Almost two decades after she listed the grievances, her desire to disinherit her son was upheld this summer by B.C. Supreme Court Justice Douglas Halfyard. In Holvenstot v. Holvenstot,  he found the approximately $320,000 in the estate should be divided among the daughters and dismissed a claim to vary the will (a statement of claim was filed in 2001 by the son, but the case did not go to trial until after a certificate of pending litigation was cancelled by a B.C. court in 2011).

The ruling was the latest example of 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 Holvenstot may signal an increased reluctance to vary a will when a parent has provided a legitimate explanation for disinheriting a child.

“I think it breaks new ground,” says Tom Finkelstein, a lawyer in Courtenay who successfully represented the defendants in Holvenstot. “It moves away from the judicious-parent test,” indicating a shift to one that is more subjective. “Where a parent is going to disinherit and in their mind they have good reason, the court is not going to interfere.”

Still, B.C. is probably the most favourable 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 provision” for the support of a testator’s spouse and children. The Supreme Court of Canada, in 1994’s Tataryn v. Tataryn Estate, interpreted the B.C. statute as including a moral obligation 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 obligation, some provision for such children should be made,” wrote Justice Beverly McLachlin in the unanimous decision.

The basic principles behind the decision 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. Cummings, the Ontario Court of Appeal concluded that moral obligations could be considered under the Succession Law Reform Act, although that case involved dependant heirs. To date, the courts in Ontario have not explicitly recognized a moral obligation for claims by independent children, but lawyers who practise in this area say as a result of the decision in Cummings the law is not that different than in B.C. “Mediation in this area has decimated case law,” says Ian Hull, at Hull & Hull LLP in Toronto. “But from a practical standpoint, the independent child, moral obligation claim is pursued much more than it ever was and these cases are settled. The fact that B.C. has a statute is overplayed. It is a very powerful tool in mediation and settlement discussions.”

While not tested at trial yet in Ontario, whether there is a moral obligation to provide for an independent child was described as “almost, possibly, probably,” by estates lawyer Susan Woodley in a 2009 paper for the Ontario Bar Association. “It is still fairly controversial,” she states. “You can argue there is a moral obligation, but it does not equal a legal obligation. And you first have to look at competing claims,” says Woodley, a lawyer in Bowmanville, Ont.

With the “right facts,” a court in Ontario may recognize a moral obligation for an independent child, but that right can be extinguished by their actions. “If you haven’t seen your parents in 10 years, they have a right to disinherit you,” says Woodley.

Even in B.C., possible interference with testamentary autonomy can be controversial, sats Trevor Todd, a Vancouver estates lawyer whose firm web site is “Bring this issue up at a dinner party. You will have a food fight. Your guests will be split 50-50,” says Todd, who believes the legislation in B.C. is good public policy. “It is fair and equitable.”

Since the Supreme Court’s decision in Tataryn, the application of the test in B.C. has been very fact specific. “In a Wills Variation Act case, pretty much everything is a factor,” says Robert Kasting, associate counsel at Stewart Aulinger & Co. in Vancouver who represented Bruce Holvenstot. “There is a huge amount of discretion for the trial judge.”

Even in siding with the wishes of the late mother in Holvenstot, Halfyard concluded that many of her claims against her son were not true. He believed other claims though, including the allegation the son planted the marijuana, moved to have his mother declared incompetent, and tried to acquire ownership of land, which required her to go to court to cancel an agreement. The B.C. judge also relied on a 1995 videotaped interview between Patricia Holvenstot and a judge in New Jersey, who found that she was competent and did not want to have contact with her son.

A testator who wants to disinherit an heir must have “valid and rational” reasons at the time of her death, ruled Halfyard, in reference to a 1996 decision by the B.C. Court of Appeal. The trial judge focused on the reasons he found to be true. “They are logically connected to the mother’s decision to disinherit the plaintiff,” wrote Halfyard.

The final step in the analysis was whether the reasons must be subjected to an objective “judicious parent” test. “The question of how the test is to be applied remains unsettled in this court,” wrote Halfyard.

The judge determined that based on a recent B.C. Court of Appeal decision in Hall v. Hall, it is enough that a judicious parent “could” have made a decision to disinherit, to find that it is rational and should be upheld.

The son did not file an appeal and Kasting says he does not disagree with the trial judge’s interpretation of the law in Holvenstot, even if the conclusions on the facts did not come out in favour of his client. “The test is whether you can convince a court the most important reasons are not valid and rational,” he says.

For his part, Finkelstein says the court properly recognizes testamentary autonomy, adding the Supreme Court stressed in Tataryn that it was not be interfered with lightly. The court is more likely to consider a claim “if there is no statement in the will, or no evidence” for disinheriting, he says. “The straw that broke the camel’s back here, is the son tried to have his mother committed.”

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