Leaving Children Behind
One of the common reasons parents disinherit their children is they acquire a “new” family. Too often the parents treat their new children — or the children of their new spouse — as the future, while the children of their ex-spouse are ignored as reminders of the failed past.
Discarding the first family sometimes means the departing parent refuses to pay child support. Sometimes they withdraw from playing any important role in the lives of the older children. Sometimes they leave the older children out of their Wills.
BC requires will-makers to “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children”. If the will-makers doesn’t do so, the spouses and children can sue.
The judge must consider whether the will-maker had a legal obligation to the child. Usually this is a simple test. Then the court must consider whether the will-maker had a moral obligation. Essentially, the court tries to figure out what “society’s reasonable expectation” would be. I think of this as: “What would be the collective decision of people lined up at a Costco cashier?” In other words, regular people. Note that most judges have no idea what food costs. One judge has stated (bragged?) often that he’s never been inside a Costco — and hopes he never will go in one. So, it’s often hard for judges to imagine what normal people think. But they try.
The recent case of Pascuzzi v. Pascuzzi: https://canlii.ca/t/jqc4l is a good example. Michael Pascuzzi split from his first wife and left behind his daughter Alex. For most of her life, the daughter had an on/off relationship with him. It looks like his new wife didn’t want to have the “old” daughter competing for his affection. The new wife had 2 kids from a previous relationship. It looks like he threw himself into the new family and largely abandoned his daughter. But, from time to time dad and daughter spent time together and had a relationship. She was 32 when her dad died. His Will left her nothing. The new wife (of course) testified that the dad had specifically decided to leave the daughter nothing. She even claimed Alex was not his daughter -- then produced not evidence for that claim (really bad move).
Justice David Crossin determined that the dad had not made adequate provision for Alex. He said:
[137] I conclude on the evidence that Mr. Pascuzzi at all times loved the plaintiff. I find that he made a terrible error in judgment in the way he approached the difficulties the plaintiff faced in her early childhood—particularly as reflected in the May Letter. Approaching matters as if a four-year-old was somehow responsible for her own behaviour was entirely unhelpful and led to a good deal of lasting anguish.
[138] However, I do not find that Mr. Pascuzzi’s conduct was behaviour driven by ill will towards the plaintiff. In addition, the weight of the evidence reveals Mr. Pascuzzi knew, over the course of time and reflection, that he had badly handled many aspects of parenting the plaintiff.
Justice Crossin ordered that Alex receive 30% of the estate. The new wife got 70%. The estate was valued at about $1.8 Million.
At Clear Legal, we have been helping clients get fair results since 1990. If you or someone you know has been unfairly treated in a Will, call us.
