Wills & Estate Planning

Estate Planning Considerations When Providing for Adult Children With Disabilities

Written on behalf of Cherkowski Marsden LLP

Planning one’s own estate allows a person to decide on how their legacy will be passed on and how their assets will be handled and distributed after their death. While it can be an opportunity to dictate one’s legacy however they wish, the common law and provincial legislation also come into play with respect to protecting certain people after a loved one’s death. For example, a testator’s spouse and children must be adequately provided for in their Will. Failure to do so will leave the Will vulnerable to challenge by those who did not receive sufficient provisions, and in most cases, a court will step in and make changes to the Will in order to rectify the situation according to applicable succession laws. While most people are aware that they must provide for minor children out of their estate, they may not be aware that in certain circumstances, they may be required to do the same for children who have reached the age of majority as well.

Adult Dependent Children Require Careful Consideration

When a testator has an adult child with disabilities that limit their ability to provide for themselves, that child will be treated by the courts as a minor child would with respect to succession. While people are generally entitled to leave adult children out of their Will if they so choose, the same cannot be said if that child is not in a position to earn an income of their own. Under s. 60 of the Wills, Estates and Succession Act, courts are granted the right to rectify a situation in which a Will has failed to provide sufficiently for those who may need it. The section reads as follows:

Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

A recent decision of the British Columbia Supreme Court illustrates one way in which a testator’s Will may be considered lacking with respect to an adult child with intellectual disabilities, and how a court may step in to rectify the situation.

Insufficient Financial Provisions and Restrictions on Use Were Found to be “Cruel”

In the case at hand, the testator had an adult daughter who was intellectually disabled and required ongoing care. The testator left behind an estate totalling approximately $1.8 million, and of that amount, left only $15,000 to her daughter. The trial involved several issues, including the validity of the testator’s final Will, however, for the purposes of this post, we will focus on the issue of the challenge brought on behalf of the testator’s daughter by her representative, the Public Guardian and Trustee of British Columbia.

At the time of the trial, the testator’s daughter was in her early seventies and suffered from multiple conditions including severe developmental disabilities. She had been in state care since the age of four and required assistance with basic life tasks such as banking, household management, transportation and assistance with her medications. She resided in a private home along with a care worker who assisted her with her daily needs. She had never had a close relationship with her mother. In fact, relatives reported that the testator rarely saw her daughter during her lifetime and was reluctant to even speak about her.

The testator left multiple Wills, the most recent two of which left the bulk of her estate to a variety of charities, as well as her brother, and her niece who was named as the residual beneficiary of the estate. Both Wills left only $15,000 to the testator’s daughter.

The daughter lived very modestly and got great joy out of travelling whenever she could. Given her condition, she required an aide to travel with her and had paid those expenses in addition to her own on previous trips to Florida or Mexico. When she was alive, her mother had apparently expressed frustration with the fact that her daughter had covered these expenses for an aide worker when taking trips, and sought to place conditions on the modest bequest to her daughter that the money not be used for travel.

In considering the size of the estate and the relatively small bequest to the daughter, the court was of the opinion that not only were the provisions inadequate but placing limits on the one thing that seemed to provide joy to the testator’s daughter “bordered on being cruel”. As a result, the court replaced the daughter as the residual beneficiary of the estate over the testator’s niece. In addition, several items in the estate including bank accounts and real property that had been placed in joint ownership with the testator’s brother and niece were instead made to form part of the overall estate.

When Planning for the Ongoing Care of an Adult Dependent Child, Consult With an Experienced Estate Lawyer

As demonstrated by the case at hand and the applicable legislation, a Will that does not adequately provide for an adult child with disabilities can leave the Will vulnerable to challenges and variations by the courts. In order to save beneficiaries and estate executors from costly litigation, be sure to obtain advice from a skilled lawyer when planning the future care of any dependent adult children.

The estate lawyers at Cherkowski Marsden LLP in Vernon are extremely knowledgeable with respect to all aspects of estate planning and Will drafting. They have extensive experience drafting countless custom estate plans that range from simple to highly complex. For questions and advice about your estate planning needs, please contact their office online or by phone at 250-308-0338.