B.C. estate law stops the dead from stiffing ungrateful kids

Monday, November 23rd, 2009

Ian Mulgrew

People might still believe it’s their estate and they’ll leave it to whom they please, but the law in B.C. says otherwise if you try to stiff your wife or kid.

There was talk of changing the unique way the province handles estate litigation as part of the latest omnibus amendments to our archaic death laws, but it went nowhere.

There was stiff opposition to bringing us into line with other provinces, the United Kingdom and the U.S. by eliminating the thrust of the Wills Variation Act.

One of the fears about changing the handling of estates was that in cultures where the son is revered as a veritable god, women would be routinely disinherited.

That can’t happen in B.C. right now.

Unlike those other jurisdictions, the century-old law we use for estate litigation comes from New Zealand rather than England.

Oddly, the debate is also occurring right now in the United Kingdom, where the issue (known as testamentary freedom) is a key concern as the country prepares for full integration with the continental community.

New Zealand was the first common law jurisdiction to seriously question and rein in the right to leave your estate to whom you pleased on the basis that the family had a right to be protected.

It passed the Testator’s Family Maintenance Act in 1900.

In the wake of the social reform movements that followed the First World War, B.C. adopted a similar statute with the same name and near identical provisions in 1920.

In England and the common-law jurisdictions such as America, that hasn’t happened to the same extent.

The liberty to dispose of your assets any way you like, as they are yours, remains a pretty fundamental bedrock idea.

In Europe, by comparison, most of a person’s estate is legally reserved for and divided equally among the surviving children.

Though some countries prohibit those who murder their parents from profiting, European nations make it illegal to disinherit children who disappoint.

Forget about leaving it all to Fido to make a point to the ungrateful progeny — the Europeans ensure they still receive their pound of your flesh.

But the rules also prevent parents from rewarding the worthy — say, the selfless daughter who forgoes her own pleasure for years to nurse an ailing mom or dad.

That’s what truly rankles the personal freedom crowd — merit gets a raw deal.

Some countries even allow what are called “clawbacks” — the ability of the heirs to retrieve assets sold by the deceased before their passing to frustrate the bureaucrats and feckless.

Last month the EU unveiled guidelines for those who have assets in more than one country — and talk about your Byzantine bureaucracy!

In Europe, the right of a child to inherit an equal share of a parent’s estate is seen as a basic human right, the English system an anachronism guaranteeing the outdated and fusty privilege of the first-born son.

The British can’t comprehend such concepts and are howling over the feared chaos of officials from Brussels trying to recover money from some U.K. charity.

The tradition of strong property rights and a free market economy drove the development of the common law, which itself is grounded in personal freedoms.

Both sides see the other system as unfair and perverse: An apparent dilemma between trampling personal freedom or accepting the worst of human caprice.

In the rest of common law Canada, which follows England, adult independent children have no claim on their parent’s estate unless they are in fact “dependent,” which usually means they cannot support themselves.

B.C. by comparison travels a kind of middle road that allows the courts to rectify wrongs. The rest of Canada should be following us, agrees Trevor Todd, the lawyer behind disinherited.com.

In the face of demands from a municipal building inspector, no one avoids the normal standards by proclaiming, “my home is my castle.”

Similarly in this day and age, no one should be allowed to treat their family unfairly by claiming that in death personal freedom gives them the right to act meanly.

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