Disinheritance and the American Child: An Alternative from British Columbia
Utah Law Review, Vol. 1998, No. 1, 1998
Posted: 21 Sep 2000
In this article, Professor Chester contrasts the American system of testation, with its high tolerance for testator control of property after death, with that in British Columbia where family protection is emphasized, even at the expense of dispositions as they appear in the will. He notes that in the United States surviving spouses have been protected through near universal passage of some form of elective or forced share. This share continues to be refined, for example, by applying it to assets left by a non probate will substitute, in addition to assets left by a will. However, few voices have been raised to protect children from a testator's whim. Chester argues that this situation is bad for the family, bad for society, and should be remedied.
Chester argues that this remedy should not take the form of "forced share" legislation for children. Rather, he concludes that the English and Commonwealth system of family maintenance offers a better solution for the United States, particularly as this system is practiced in British Columbia. The British Columbia approach to varying a testator's will relies almost exclusively on judicial discretion rather than on forced share legislation. Chester concludes that when a will is challenged, the current United States preference for certainty in asset distribution by enforcing testator's will, should yield to judicial conception of a "just distribution" of the assets among family members, particularly children.
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