Mother Disinherits Son for Growing Pot and Not Cleaning His Room – Should Court Intervene?
Although not strictly a family law matter, a case was heard recently involving the interesting question of whether courts can or should impose a moral obligation on parents which would prevent them from disinheriting their children in a Will.
The case in Holvenstot v. Holvenstot, which was heard by the B.C. court, concerned the validity of a Will by a woman named Patricia. Patricia had four children – three daughters and a son named Bruce – and over the years had prepared five separate Wills. The last one, which was executed about three years before she died, effectively divided her estate assets evenly amongst the three daughters but left Bruce only one cent.
Patricia’s bequest of one penny was accompanied by a 6-page, handwritten explanation, enumerating her many longstanding grievances about Bruce’s behaviour, some of which occurred when he was a teenager. Several of the complaints were trivial (such as the allegation that Bruce rarely read books or cleaned his room), while others were more serious (such as his growing marijuana on family property, which resulted in Patricia being placed on one-year probation, and his trying to have Patricia declared incompetent and committed). The court summarized Patricia’s litany of alleged complaints to include the following:
a) When he was about 17 years old, the plaintiff [Bruce] was stealing money from her.
b) At a later date, he tried to get [his sisters] Taffy and then Leslie, hooked on drugs.
c) He planted marijuana plants in her garden and lied about what it was.
d) He said that she had Parkinson’s Disease and Alzheimer’s disease (which was not true) and tried to have her declared incompetent by the court.
e) He made himself executor, tried to get her stocks and tried to get two acres of her land.
f) He allowed her house insurance and land taxes to lapse, as well as her Blue Cross and Blue Shield coverage.
g) He let Victor Valerani use her dog kennel as a shop, without requiring payment of rent or for electricity, and she had a hard time evicting Mr. Valerani from the property.
h) He kept many of her personal possessions.
i) She paid him $1,600 a month (including $400 a month for food) to care for her, but he did not feed her properly.
j) She felt that “He robbed me blind.”
k) He has been using, growing and selling marijuana since he was a teenager. He grew marijuana at two places, including at her home in Long Valley. The police seized the growing marijuana and she and Taffy were charged with “growing and possession.” She was convicted and put on probation for a year, and had to meet with her probation officer every month.
l) He continued to grow marijuana on a neighbour’s land, until she phoned him and told him that the police had found the marijuana, which was not true, but which was done to protect him.
m) “The final straw was he tried to have me declared incompetent. I went to several doctors who all said I was competent. This cost me money. It cost me $15,000 to go to a hearing in Morristown to be declared competent.”
n) “It’s clear to me that Bruce will never change. He blames everybody, never takes blame – is money mad – is cruel to his dog . . . .”
Bruce applied to the court to have his mother’s Will varied so that he would inherit some of her $320,000 estate. However, his application was unsuccessful; the court did not interfere with Patricia’s desire to disinherit him. Bruce had failed to show on the balance of probabilities that Patricia’s reasons for disinheriting him are either false or (if true) they are not “rationally connected to the act of disinheritance”.
Admittedly, the B.C. legislation under which Bruce applied (namely the Wills Variation Act) is unique amongst the Canadian provinces, since it expressly allows a court to vary a person’s Will in order to “make adequate provision” for the support of his or her spouse or children. Furthermore, the Act has been interpreted to intend for recognition of a “moral obligation” toward one’s children, even when they are independent adults. The court in Holvenstot accordingly pointed out that there were competing principles at play: namely the notion of “testamentary autonomy” versus the idea that parents executing a Will have a “moral obligation” toward their adult children. In this case, the balance favoured giving effect to Patricia’s wishes.
In contrast to B.C., Ontario has no equivalent legislation. Nonetheless, courts in this province have in the past recognized a similar moral obligation, in cases involving both dependent and independent children. As such, the decision in Holvenstot remains noteworthy: in refusing to invoke its discretion under the Wills Variation Act the court essentially showed that – notwithstanding the moral duty – there may be judicial reluctance to interfere with or vary a Will in those cases where the deceased parent had provided a legitimate and logical reason for his or her decision to disinherit an adult child.
Still, the situation In Ontario is still speculative, since there is no comparable overarching legislation and there has been (as yet) no comparable fact scenario for this province’s courts to consider.
For the full text of the decision, see:
Holvenstot v. Holvenstot, 2012 BCSC 923 http://canlii.ca/t/frt0f
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