Case Comment: Cusack v. Cusack, 2026 BCSC 461

The BCSC released an interesting wills‑variation summary trial decision last week confirming that the court will not always intervene when a will‑maker disinherits an adult child.

In Cusack v. Cusack, 2026 BCSC 461, Justice Thomas dismissed a wills variation claim brought by a disinherited adult daughter.

The will‑maker divided his roughly $450,000 estate between his son and grandson and expressly disinherited his daughter. In a statutory declaration, he explained that he had been estranged from her since 1992.

The family background was deeply fraught. The parents’ marriage was volatile and marked by alcohol abuse, repeated separations, and family violence. The daughter suffered abuse at the hands of her mother and experienced at least one incident in which her father struck her in anger. After separation, the mother was awarded sole custody and actively alienated the children from their father, leading to a prolonged estrangement.

As an adult, the daughter later reconciled with her father and appeared to be rebuilding a healthier relationship. That reconciliation deteriorated after the daughter began cohabiting with her mother again. The court found that, as an adult, the daughter’s renewed estrangement from her father was influenced by her mother and by conversations she had with her about him. Despite the will‑maker’s efforts, the relationship could not be repaired.

Key Precedential Takeaways

Several aspects of Cusack will be of interest to estates practitioners.

1. Clarifying the “Valid and Rational” Test after Tom v. Tang

The court applied the “valid and rational” reasons for disinheritance framework as clarified by the BCCA in Tom v. Tang, 2023 BCCA 221. Following Tom, some uncertainty remained as to how the subjective analysis from Bell v. Roy Estate, 1993 CanLII 1262 [Bell], and Kelly v. Baker, 1996 CanLII 1596 [Kelly], fits alongside the objective “judicious parent” standard from Tataryn v. Tataryn Estate.

Justice Thomas confirmed at para. 11 that both analyses still apply. The court must first ask whether the will‑maker’s reasons for disinheritance were subjectively valid and rational. If so, the court then proceeds to the objective stage and considers whether a judicious parent would nevertheless be found to owe a moral obligation, based on the totality of the evidence (including the will‑maker’s subjective reasons for disinheritance).

In this case, Justice Thomas concluded that the mother’s pattern of alienating the children from their father continued into adulthood, affected the daughter’s relationship with the will‑maker, and led to their estrangement. As a result, the will‑maker’s reason for disinheriting his daughter was found to be both factually valid and rationally connected to this fact.

2. Estrangement Does Not Require “Zero Contact”

The plaintiff argued that there was no true estrangement because she continued to speak with her father approximately once a year up until his death. The court rejected this, stating that “estrangement does not require zero contact between the parties.” Accordingly, this was a factually accurate basis for disinheritance under the Kelly/Bell framework.

3. Reconciliation and Re‑Estrangement

On the second stage of the analysis (i.e. the objective judicious parent test), the court acknowledged several factors that would ordinarily support a stronger moral obligation to an adult child: the daughter’s difficult childhood, the father’s partial responsibility for the family violence and initial estrangement in childhood, the size of the estate (sufficient to provide for both children), and the daughter’s financial need (she was living on a First Nations reserve and on disability).

However, the court ultimately found that the will‑maker had no moral obligation to his daughter. Justice Thomas emphasized that the daughter had, as an adult, successfully reconciled with her father but later chose to become estranged again for over 30 years. This adult decision was found to constitute “just cause” for the disinheritance and to negate any moral duty that might otherwise have existed.

4. A Notable Comment on Grandchildren’s “Claims”

When weighing the competing claims of the son and grandson, the court reaffirmed that children generally rank higher than grandchildren. However, Justice Thomas observed that, given the unusually close relationship between the will‑maker and his grandson, the grandson nevertheless had a “strong claim” (para. 36).

This comment is noteworthy given that the BCCA has confirmed that grandchildren have no legal or moral claim under s. 60 of WESA: see Bennison v. Bennison, 2025 BCCA 195; Berryere v. Berryere, 2000 BCSC 597; and Smith v. Smith, 2009 BCSC 1737. How courts will reconcile this “strong claim” language with settled authority remains to be seen.

Final Takeaways

The decision offers several noteworthy takeaways:

• Estrangement isn’t necessarily all‑or‑nothing. Minimal or sporadic contact may still be consistent with estrangement.
• The subjective Bell/Kelly test continues to apply alongside the objective judicious‑parent standard in Tataryn.
• Even if an estrangement in childhood was not the claimant's fault, the claimant can “reset” the estrangement analysis by choosing to reconcile as an adult and then later become estranged again. Accordingly, a claimant's failure to take positive steps to repair the relationship as an adult can negate moral claims.

• Grandchildren may have a strong “claim” in a wills variation analysis, even if they are not claimants under s. 60 of WESA.

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