Albert Verch died in 2008. He left his entire estate, assessed at over $950,000, to his daughter-in-law. The daughter and Verch’s son separated shortly after Verch’s death. Verch’s son and daughter were left out of the will. The children challenged the Will claiming that their father had a moral obligation to provide for them in his will.
The Ontario Superior Court of Justice and the Court of Appeal in Verch v. Weckwerth ( O.J. No. 2092) disagreed and limited the moral obligation to dependants. While the issue of a parent’s obligation to provide adequate support to dependants is dealt with under the Succession Law Reform Act, the act does not provide any inheritance rights to adult independent children.
The children’s claim in Verch was based on a BC Supreme Court decision in Tataryn v. Tataryn Estate ( S.C.J. No. 65) which found that “while the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made”.
The Ontario Court of Appeal rejected this approach and refused to apply the BC ruling to Ontario. The court held that the adult children have no claim for support under the Ontario Succession Law Reform Act while BC’s Wills Variation Act does not exclude adult independent children from making a claim against a will. Therefore, the Court of Appeal held that the BC ruling cannot be relied upon by Verch’s children in support of their claim. This means that in Ontario, the testator (still) has the freedom to decide who will be included in his will and can decide not to provide for independent children. The courts should not intervene on a moral basis.
If you have any questions regarding will challenges, contact our Wills, Estates and Trust group at Merovitz Potechin LLP.