Fertility Treatments, Young Children, and the Necessity for an Estate Plan
Wills and Estate Planning
Why You Need to Use a Lawyer for Complex Estate Planning
Estate disputes are emotionally complex, especially when the will-maker excludes their spouse or children who probably expected to benefit from the estate. Recently, a British Columbia ruling, Cusack v. Cusack, showcases the importance of careful estate planning with a lawyer who both understands the needs of the client and how to execute it.
Under British Columbia’s Wills, Estates and Succession Act (“WESA”), spouses and children may bring wills variation claims seeking a larger share of an estate if they believe a will does not make adequate provision for them. In these cases, the courts must balance the reasoning behind any declarations with the will-maker’s legal and moral obligation to the claimant’s.
In Cusack v. Cusack, the deceased father excluded his adult daughter from his will following a lengthy estrangement that had lasted for decades. Before his passing, the deceased prepared written documentation outlining his reasons for the disinheritance and describing the history of the relationship breakdown. The specifics of the case are an emotional story, not uncommon in today’s family dynamics. The Court ultimately declined to vary the will.
More importantly, the decision does not suggest that courts automatically ruled against the claimant due to the existence of contemporaneous documents with the Will. Rather, the case illustrates how courts assess such evidence to determine whether the will-maker’s decisions were rational, informed, and logical with the surrounding circumstances. Specifically, the court highlights that the daughter’s claim of moral obligation was very valid, under consideration of the father’s behavior during her early childhood. However, any moral obligations he had to her disappeared when she decided in her adulthood to once again estrange from him, stopping any reconciliation attempts. The court heavily relied on documentation during this period to come to this conclusion.
The case serves as a reminder that estate planning involves more than simply drafting a will. In situations involving blended families, estrangement, unequal distributions, or anticipated disputes, additional documentation may become extremely important. Depending on the circumstances, this may include detailed solicitor notes, memoranda, or statutory declarations outlining the testator’s intentions and reasoning.
While no document can completely prevent a wills variation claim, it is of the utmost importance to maintain proper documentation and to discuss the topic with the solicitor in charge of the estates planning. Cusack v. Cusack shows the necessity of such action. If you are planning to review your estate, make sure to find a lawyer who not only understands your needs, but how to meticulously execute it with supporting documents.