In many civil law jurisdictions in Europe, Latin America, and the Middle East, they view inheritance as a familial right rather than a personal choice. Forced heirship rules in these countries mandate that a specific portion of the estate must be legally distributed to protected heirs (e.g., children, surviving spouse). This means that your testamentary attempt to leave your entire foreign estate to a single person or a charity could be legally voided or reduced by the laws of the country where the property is located.
Conversely, in Ontario, the common law principle of testamentary freedom allows a testator to decide how their estate should be distributed upon death. This means that a testator is generally free to leave their assets to whomever they choose, whether that be family members, close friends or charitable organizations and may even choose to exclude certain family members from their will. However, testamentary freedom is not absolute.
Legislation provides certain individuals with the right to seek relief against an estate where the deceased has failed to make adequate provision for their support. In Ontario, under Part V of the Succession Law Reform Act, someone who was financially dependent on a deceased person – yet was left out of a will or received too little, may make an application for financial support.
In British Columbia, Section 60 of the Wills, Estates and Succession Act allows the court to vary a will where a testator has failed to make adequate and equitable provision for their spouse or children, including independent adult children.
The Supreme Court of British Columbia recently considered this issue in Enes v. Dancey, 2026 BCSC 1644, where a father disinherited his daughter and left almost his entire estate to his son. The court was asked to determine whether the father’s decision was justified or whether the will failed to satisfy his moral obligations towards his daughter.
Background
In Enes, the deceased, Danial Alan Dancey, passed away in January 2024, leaving an estate valued at approximately $1.8 million. He had two adult children, Kristin and Jeffery. His final will, executed in 2022, left the residue of his estate to Jeffery, effectively disinheriting Kristin. The will also provided $10,000 to his former wife and $1,000 to each of Kristin’s three children.
The deceased had revised his will several times over the years, with the distribution of his estate changing alongside his relationships with family members. In an earlier will, Kristin was entitled to 50% of the estate. However, in 2015, her entitlement was reduced to 1%, and she was eventually removed as a beneficiary altogether in 2022.
The deceased justified his decision on the basis that he had been estranged from Kristin for approximately ten years. Their relationship had deteriorated following Kristin’s divorce, which the deceased strongly disapproved of. The court also heard evidence that the deceased had a pattern of altering his estate planning whenever his relationships with family members changed.
Despite their estrangement, there was evidence that Kristin and her father had reconciled in the months leading up to his death. However, the deceased passed away without making any further changes to his will.
Kristin challenged the will, arguing that her father had failed to make adequate provision for her and had not fulfilled his moral obligations as a parent.
The Court’s Analysis
The court considered section 60 of the Wills, Estates and Succession Act, which permits a court to vary a will where it does not make adequate, just and equitable provision for a spouse or child.
In doing so, the court applied the principles established by the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 SCR 807, which recognizes that a testator’s obligations extend beyond strictly legal duties and may include moral obligations towards independent adult children.
An important consideration was whether the deceased had valid and rational reasons for excluding Kristin from his will. Although the deceased relied on their estrangement to justify his decision, the court found that the breakdown in their relationship was largely attributable to his own conduct, particularly his disapproval of Kristin’s divorce. The court was not satisfied that these circumstances provided a defensible reason for disinheriting her.
The court also considered evidence that Kristin and her father had reconciled before his death. However, even if their relationship had not been repaired, the court found that the estrangement could not justify her exclusion where it had not been caused by Kristin.
The financial circumstances of both children were also considered. Kristin’s financial position was described as precarious, while Jeffery had his own financial challenges. However, the court recognized that Jeffery had provided care and assistance to his father during the final years of his life, which justified awarding him a larger share of the estate.
Ultimately, the court found that the deceased had failed to make adequate provision for Kristin and had not acted as a judicious testator in excluding her from his will. The court varied the will, awarding 45% of the estate to Kristin and 55% to Jeffery.
Takeaway
Enes v. Dancey illustrates that testamentary freedom is not absolute and that a parent’s decision to disinherit a child may be subject to judicial scrutiny, particularly where the reasons for doing so are not justified.
However, it is important to distinguish the position in British Columbia from that in Ontario. Unlike British Columbia, Ontario does not have equivalent legislation permitting a court to vary a will solely because a testator has failed to fulfil a moral obligation towards an independent adult child.
Under Part V of Ontario’s Succession Law Reform Act, a dependant may seek dependant’s support where the deceased was providing support or was under a legal obligation to provide support immediately before death, provided the claimant falls within the statutory definition of a dependant. Simply being excluded from a parent’s will, without more, does not ordinarily entitle an independent adult child to relief.
Have questions about your Will, estate planning or an estate dispute? Contact Nadine Esaid at Boardwalk Law LLP to discuss your circumstances, at [email protected] or 365-747-3614.
