The Supreme Court of British Columbia’s decision in Cusack v. Cusack, 2026 BCSC 461, is a clear and instructive authority for estate litigators, will‑makers, and adult children contemplating a wills variation claim. The case confirms that the failure to provide for an adult child may be upheld where longstanding estrangement is shown to be the result of that child’s own adult choices, even when the family history includes dysfunction or hardship in childhood.
The decision is also notable for its disciplined application of modern wills variation principles following the Court of Appeal’s guidance in Tom v. Tang. In particular, it reinforces that moral obligation under section 60 of the Wills, Estates and Succession Act is contextual, fact‑driven, and not presumptive.
The Estate Plan in Cusack v. Cusack and the Wills Variation Claim
Cecil Cusack died in October 2023. His final will, executed shortly before his death, excluded his adult daughter, Cheryl Cusack, entirely. Instead, Cecil made modest fixed gifts to his grandson and daughter‑in‑law and divided the residue of his estate, valued at approximately $420,000, between his son and grandson.
What distinguished this case from the outset was that Cecil’s will was accompanied by a sworn declaration explaining his decision. In it, he stated that he had been estranged from Cheryl for decades, that repeated attempts to repair the relationship had failed, and that he no longer believed he owed her testamentary provision. This contemporaneous explanation became central to the Court’s analysis.
Cheryl commenced a wills variation claim, alleging that the will failed to make adequate, just, and equitable provision for her as Cecil’s child. She relied on evidence of significant family dysfunction during her upbringing, allegations of abuse and neglect, and her current financial vulnerability, including the fact that she was receiving disability benefits.
What Counts as Estrangement in Wills Variation Claims? Substance Over Contact
One of the most significant aspects of Cusack is its treatment of estrangement. Cheryl argued that she and her father could not properly be described as estranged because they had limited but ongoing contact over the years, including annual telephone calls. The Honourable Justice Thomas rejected the notion that estrangement requires complete silence. The Court emphasized that estrangement is not determined by a mechanical tally of contact, but by a qualitative and contextual assessment of whether a meaningful parent–child relationship existed in the years leading up to death.
On the evidence, the Court concluded that there was no such relationship. While there had been a period of reconciliation when Cheryl was an adult living independently, that relationship deteriorated after she chose to move back in with her mother. Following that decision, the estrangement persisted for more than thirty years. Occasional and superficial contact did not change the fundamental reality that the relationship had, in substance, ended.
From an estate litigation perspective, this analysis is particularly important. It confirms that sporadic, reluctant, or superficial contact will not necessarily sustain a moral claim where the substance of the relationship is absent.
Does Childhood Harm Create a Moral Obligation to Inherit?
The Court took Cheryl’s evidence concerning her childhood seriously. The Honourable Justice Thomas accepted that her upbringing was difficult and that Cecil bore some responsibility, particularly in light of family violence between Cecil and Cheryl’s mother and the emotional environment in which the children were raised.
However, Cusack underscores an important principle that is sometimes overlooked in adult child claims: moral obligation is not assessed by freezing the analysis at childhood conduct. The Court repeatedly returned to the fact that Cecil and Cheryl had reconciled as adults and were, for a time, actively rebuilding their relationship. That reconciliation materially altered the moral landscape.
Once an adult child has re‑established a relationship with a parent, the moral consequences of earlier parental failings may be mitigated. Where that renewed relationship is later severed again by the adult child’s own choices, the Court may properly treat that conduct as significantly weakening, or even extinguishing, the moral obligation that would otherwise exist. In Cusack, the decisive factor was not the existence of childhood hardship, but Cheryl’s choice of prolonged estrangement after reconciliation, without any new triggering misconduct by her father.
How Courts Assess a Testator’s Reasons for Disinheritance in BC
Applying the framework set out in Tom v. Tang, 2023 BCCA 221, the Court first examined whether Cecil’s reasons for disinheriting Cheryl were factually valid and rational from his subjective perspective.
The documentary record, including extensive correspondence, showed Cecil repeatedly seeking explanations for the estrangement and expressing confusion at Cheryl’s accusations. Justice Thomas accepted that Cecil genuinely believed the estrangement did not arise from ongoing misconduct on his part, but from Cheryl’s renewed alignment with her mother and her unwillingness to maintain a relationship. That belief was supported by the chronology and the evidence.
Having accepted Cecil’s reasons as valid and rational, the Court turned to the objective question of whether, notwithstanding those reasons, a moral obligation to provide for Cheryl remained when viewed through the eyes of a judicious parent acting in accordance with contemporary standards. The Court concluded that it did not.
Does Financial Need Guarantee a Successful Wills Variation Claim?
Cheryl’s financial circumstances were carefully considered. She was on disability, had limited personal assets, and lived on reserve land pursuant to a life interest. These factors weighed in her favour and were expressly acknowledged as strengthening her claim.
Nonetheless, Cusack serves as a reminder that financial need alone does not compel a variation. Moral obligation must still be grounded in the nature of the parent–child relationship and assessed in the context of competing claims. Even genuine financial hardship may be outweighed where other claimants have demonstrably stronger moral claims.
How Courts Balance Competing Claims and Testamentary Autonomy
Those competing claims were significant. Cecil’s son and grandson had longstanding, close, and supportive relationships with him. Although adult children ordinarily rank ahead of grandchildren, Justice Thomas gave substantial weight to the closeness of the grandparent–grandchild relationship in this case.
The decision reflects a careful balancing of testamentary autonomy with the remedial purpose of section 60 of the Wills, Estates and Succession Act. While testamentary freedom remains subordinate to the obligation to make adequate provision, Cusack demonstrates that autonomy will be respected where the testator’s choices fall within the range of what a judicious parent could reasonably do.
Can Wills Variation Claims Be Decided by Summary Trial in British Columbia?
From a procedural standpoint, Cusack is also notable for its endorsement of summary trial in appropriate estate disputes. Given the age of the events, the largely documentary nature of the evidence, and the modest size of the estate, Justice Thomas concluded that a conventional trial would add cost and complexity without improving the quality of justice.
This aspect of the decision signals to practitioners that even emotionally charged estate disputes may be resolved efficiently where credibility can fairly be assessed on the written record.
Key Takeaways for Will Makers, Advisors, and Adult Children
Cusack represents a careful and modern application of wills variation principles to a difficult family history. It confirms that adult children do not enjoy an automatic moral entitlement to inheritance and that estrangement, when grounded in adult choice and supported by credible evidence, may justify disinheritance.
For will‑makers, the case underscores the importance of documenting reasons for exclusion clearly and contemporaneously. For estate litigators, it offers a structured example of how courts weigh reconciliation, renewed estrangement, and competing moral claims. And for adult children considering a claim, Cusack stands as a cautionary reminder that past hardship, while relevant, does not guarantee a successful challenge where the relationship ultimately failed in adulthood.