Quick answer: Yes, you can divide your estate unequally among your children in BC. The law protects testamentary freedom, but it also lets a child ask the court to vary a will under section 60 of the Wills, Estates and Succession Act. An unequal division holds up when the will-maker’s reasons are valid (based in fact) and rational (logically connected to the decision). Reasons that are wrong on the facts can be set aside.
The unequal division of estate and property under a will must be valid and rational based on the reasons provided by the testator. If the court decides that the unequal distribution was not based on fact, or not logically connected to the reasons given for the distribution, it will redistribute the estate in a manner that is adequate, just, and equitable in the circumstances. This was the case in Ryan v. Delahaye Estate.
Is unequal division of estate between children legal based on time spent with parents?
Mrs. Delahaye left 80% of her estate to her son Bernard and only 20% to her daughter Marcelle. The reasons she gave for this distribution were that Bernard was of great assistance to his parents over the years, Marcelle seldom visited on her own initiative and only did so at her parents’ request, and Mrs. Delahaye’s husband had given Marcelle her paternal grandmother’s estate, which had been bequeathed to him. The family was originally from France, and shortly after Marcelle was born in 1943 she went to live with the grandmother. Marcelle said that this was partly because her mother wanted to continue working, but also because her parents had expected a male child and were not happy that she was born a girl. When Bernard was born in 1949, he lived with the parents. Marcelle lived with her grandmother almost exclusively until the grandmother’s death in 1966.
How does parental care shape a court’s decision on unequal inheritance?
In 1965, the grandmother transferred title to the two-acre parcel on which she lived into the joint names of herself and Marcelle. She said this was in payment for Marcelle’s continued care of her over the years. When the grandmother died, title to that parcel of land went to Marcelle by the right of survivorship. In other words, the property was not bequeathed to Marcelle’s father and he did not give it to her. Furthermore, although it was true that there had been times when Bernard was more present in the parents’ lives than Marcelle was, as an adult Marcelle saw them frequently and supported them. She visited them in hospital, cared for them in their home, and assisted them with a number of moves. She worked on their property at times, and they also visited her at her home. Despite their treatment of her as a child and their anger over the grandmother’s gift to her of the two-acre parcel, she continued to have a relationship with them until their deaths. Bernard’s devotion to the parents did not displace Marcelle’s contributions. The court varied the will to equally divide the estate between the two children.
The final word
Unequal division of estate must be based on factually supported reasons.
Testamentary freedom, and where it runs out
British Columbia law starts by respecting your right to divide your estate as you see fit. You are not required to treat your children equally, and there are good reasons a parent might not: one child has greater need, another already received substantial help during the parent’s life, or the relationships simply differ. That freedom is real.
What the law adds is a check. Under section 60 of the Wills, Estates and Succession Act (WESA), a spouse or child who was not adequately provided for can ask the court to vary the will and order provision that is “adequate, just and equitable in the circumstances.” So an unequal division is permitted, but a child who received less can put the reasons for it in front of a judge. The question becomes whether those reasons hold.
The test: valid and rational reasons
When a will-maker leaves one child less than another, the court looks at the reasons behind the choice. Two requirements decide whether the unequal split survives:
- Valid — the reason has to be based in fact. A reason built on a mistaken belief, or on something that did not actually happen, fails at this step. If a parent leaves a child less because they believed the child abandoned them, but the evidence shows the child stayed in contact and helped, the reason is not valid.
- Rational — there has to be a logical connection between the reason and the decision to divide unequally. Even a true fact does not justify the split if it has no sensible bearing on the choice.
Where the reasons are both valid and rational, courts are generally reluctant to disturb the will, because doing so would override genuine testamentary intention. Where a stated reason turns out to be factually wrong — as when a parent penalizes a child for a gift the parent wrongly assumed came from family property — the court can set that reason aside and redistribute the estate. That is exactly the kind of factual error that leads a court to equalize a division the will-maker had made lopsided.
How to structure an unequal will that holds up
If you intend to divide your estate unequally, the difference between a will that survives a challenge and one that gets rewritten usually comes down to preparation:
- Write down your reasons. A clause in the will, or a separate signed memorandum, explaining why one child receives more gives the court evidence of your actual intention rather than leaving it to guesswork after you are gone.
- Make sure the reasons are accurate. Reasons based on facts that can be checked and verified hold up. Reasons based on assumptions or old grievances that the evidence contradicts do not.
- Account for lifetime gifts openly. If part of the reason is that one child already received help — money for a home, years of support — record it. Gifts made during your life are relevant to what is adequate at death.
- Still provide something adequate. A token gift to a child you have provided little for invites a claim. The larger and more reasonable the provision, the harder it is to argue the will failed the adequacy test.
- Keep the will current. The court measures obligations as at the date of death. A will that reflects your circumstances and relationships at that point is more defensible than one written decades earlier.
The deadline to challenge an unequal division
A child who wants to challenge an unequal division has a limited window. Under WESA section 61, the variation action must be commenced within 180 days of the date the grant of probate or administration is issued, and served within a further 30 days. Once that period passes with no claim, the unequal division stands. For related reading, see our posts on a parent’s moral obligation to an adult child and leaving your estate to friends.
Frequently asked questions
Can I divide my estate unequally among my children in BC?
Yes. BC law respects testamentary freedom, so you can leave your children different shares. A child who received less can ask the court to vary the will under section 60 of the Wills, Estates and Succession Act, and the unequal division will hold up if your reasons were valid and rational.
What makes an unequal division of an estate valid?
The will-maker’s reasons must be valid and rational. Valid means the reason is based in fact rather than a mistaken belief. Rational means there is a logical connection between the reason and the decision to divide unequally. If a reason is factually wrong, the court can set it aside and redistribute the estate.
What happens if the reasons for an unequal will turn out to be false?
If the court finds a stated reason was not based in fact, or was not logically connected to the decision, it can disregard that reason. Where the reasons do not support the unequal split, the court will redistribute the estate in a way that is adequate, just and equitable, which can mean equalizing the shares.
How can I make an unequal will harder to challenge?
Write down your reasons in the will or a separate signed memorandum, make sure they are accurate and can be verified, account openly for any lifetime gifts, still provide something adequate to each child, and keep the will current. Reasons grounded in fact and recorded in writing give the estate something to stand on.
How long does a child have to challenge an unequal will in BC?
Under section 61 of WESA, a wills variation action must be started within 180 days of the date the grant of probate or administration is issued, and served within a further 30 days. Once that period passes with no claim, the unequal division stands.
Disclaimer: This page is general legal information about British Columbia law, not legal advice for any particular situation. Reading it does not create a solicitor-client relationship. BC estate law changes, and the outcome of any wills variation claim depends on facts not covered here. For advice on your own will or a claim against an estate, speak with a qualified British Columbia estate lawyer.