Cusack v Cusack, 2026 BCSC 461

Cecil Cusack died on October 2, 2023 (the “Deceased” or “Estate”), and had three children, Lane, Grant and Cheryl. Grant predeceased the Deceased.[1] In August 2023, the Deceased executed a Last Will and Testament (the “Will”).

The salient terms of the Will made bequests of $10,000 to Lane’s son, Devon and $10,000 to Lane’s common law spouse, Rita. The residuary Estate, valued at approximately $420,000, was to be divided between Lane and Devon. Attached to the Will was a sworn declaration of the Deceased’s intent to disinherit Cheryl, wherein he cites his estrangement from Cheryl since 1992.[2]

As a result, Cheryl sought to vary the Deceased’s Will.

The law:

When determining the Deceased’s intention for disinheriting Cheryl under the Will, the trial judge relied on the test as set out in the British Columbia Court of Appeal decision in Tom v. Tang, 2023 BCCA 221. As outlined, the court must consider the following:[3]

“a)    Are the reasons provided for disinheritance valid (i.e., factually true) and rational (i.e., logically connected)? This is assessed using a subjective standard; and

1. b)    On the totality of the evidence (which includes Cecil’s subjective reasons for disinheriting Cheryl), does a moral obligation to leave an inheritance to Cheryl remain? This is to be assessed using a contemporaneous standard of an objective, judicious parent.”

Application:

Part 1: Are the reasons provided for disinheritance valid and rational? – YES

Cheryl took issue with the Deceased’s reasons for disinheriting her on the basis that she was not estranged from the Deceased but rather spoke to him regularly once a year; and that the Deceased’s reasons were not accurate given his failure to recognize his own actions towards Cheryl when she was a child.[4]

The trial judge determined that “estrangement does not require zero contact between the parties”, and despite Cheryl’s yearly contact with the Deceased, they were for the most part largely estranged – particularly in the years leading up to and at the time of the Deceased’s passing.[5]

Based on the letters from the Deceased, the trial judge found that Cheryl’s relationship with the Deceased was in a better place when she became an adult and moved away from her mother. However, this relationship deteriorated again when Cheryl later returned to reside with her mother – leading to her prolonged estrangement with the Deceased.[6]

As a result, the trial judge found that the Deceased’s reason for disinheriting Cheryl was valid and rational, satisfying the first requirement of the test in Tom v Tang.

Part 2: Does a moral obligation remain? – NO

The trial judge stated that while “there is no legal obligation to provide for an adult child in a will”, according to the case of Dunsdon v. Dunsdon, 2012 BCSC 1274, there is a moral obligation to do so. In assessing such a moral obligation, the courts should consider the following factors:[7]

• relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
• size of the estate;
• contributions by the claimant;
• reasonably held expectations of the claimant;
• standard of living of the testator and claimant;
• gifts and benefits made by the testator outside the will;
• testator’s reasons for disinheriting;
• financial need and other personal circumstances, including disability, of the claimant;
• misconduct or poor character of the claimant;
• competing claimants and other beneficiaries.

In considering the factors, the trial judge determined that the Deceased did not have a moral obligation to provide for his adult child Cheryl.[8]

Relationship: Despite Cheryl’s childhood experiences, Cheryl, unlike Lane and Grant, was able to reconcile with the Deceased. However, and importantly, once Cheryl became an adult it was her choice to live with her mother and stop speaking to the Deceased. As a result, the trial judge determined that these factual circumstances would reduce the Deceased’s moral obligation to provide for Cheryl in his Will.[9]

Size of the Estate: the trial judge determined that there was “sufficient equity in the estate to provide a bequest”, weighing in Cheryl’s favour.[10]

Cheryl’s reasonably held expectations: The trial judge determined that given the extent of Cheryl’s estrangement from the Deceased, it was not reasonable for her to expect to be a beneficiary of the Estate.[11]

Standard of living: Given Cheryl’s reluctance to provide details of her marriage-like relationship and its impact on her standard of living, the trial judge weighed this factor neutrally.[12]

Gifts and benefits: the trial judge determined that while there was some evidence that the Deceased provided Devon with money to buy a home, the particulars of this transaction were not disclosed, likewise this was a neutral factor.[13]

The Deceased’s reasons for disinheriting: although Cheryl was able to overcome issues she had with the Deceased as a child, her later choice to become estranged from the Deceased as an adult, “provided ‘just cause’ for the Deceased’s decision to disinherit”.[14]

Cheryl’s financial needs: given Cheryl’s reliance on disability and the fact that the only asset she “owns” is a life interest in reserve property (with close to $75,000 invested), the trial judge found that this factor weighed in her favor.[15]

Cheryl’s alleged misconduct and poor character: the trial judge found that Cheryl “clearly had a difficult childhood” and that her allegations towards the Deceased did not impact the factors to be considered.[16]

Competing claims: the trial judge found that given the strength of the relationship between Lane and the Deceased, that Lane had a stronger claim.[17]

Takeaways:

In British Columbia, when it comes to claims to varying a Last Will and Testament under section 60 of the British Columbia Wills, Estates and Succession Act, [SBC 2009] CHAPTER 13 (“WESA”), the courts will consider the two part test as set out in Tom v. Tang, and the factors for determining whether a moral obligation exists to provide for an adult child as set out in Dunsdon v. Dunsdon.

Notably, in British Columbia, legislation does not narrow the scope of claimants who may assert that inadequate provision was made for them in a testator’s will. Pursuant to section 60 of the WESA:[18]

….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…. order that the provision that it thinks adequate, just and equitable in the circumstances be made out…

In contrast, in Ontario, the Honourable Justice Sanfilippo in Shafman v Shafman, 2023 ONSC 1391, held that no such statutory obligation to provide for an independent adult child exists.[19] Instead, pursuant to Part V of the Ontario Succession Law Reform Act, R.S.O. 1990, c. S.26 “where a deceased has not made adequate provision for the proper support of their dependent’s, the court…may order that such provision as it considers adequate be made out”.[20] Therefore, unlike in British Columbia, one must first qualify as a dependent in order to make a claim.

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[1] Cusack v Cusack, 2026 BCSC 461 (CanLII), at para 2.

[2] Ibid at paras 8-9.

[3] Tom v. Tang, 2023 BCCA 221 (CanLII), at para 20-50.

[4] Footnote 1 at para 12.

[5] Ibid at paras 13-14.

[6] Ibid at para 21.

[7] Dunsdon v. Dunsdon, 2012 BCSC 1274 (CanLII), at para 134.

[8] Footnote 1 at para 39.

[9] Ibid at paras 25-26.

[10] Ibid at para 27.

[11] Ibid at para 29.

[12] Ibid at para 30-31.

[13] Ibid at para 32.

[14] Ibid at para 33.

[15] Ibid at para 34.

[16] Ibid at para 35.

[17] Ibid at para 36.

[18] Wills, Estates and Succession Act, [SBC 2009] CHAPTER 13, s.60.

[19] Shafman v Shafman, 2023 ONSC 1391 (CanLII), at para 1.

[20] Succession Law Reform Act R.S.O. 1990, c. S.26, s.58.