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Can Siblings Sue Over Inheritance in British Columbia?


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  • Can Siblings Sue Over Inheritance in British Columbia?

After your parent passes, the last thing you want to face is inheritance disputes among family members. But such disputes are quite common. A brother or sister feels they didn’t get their rightful inheritance from their parent’s estate. Siblings feel cheated because most or all of their parent’s estate was left to someone else, such as the parent’s surviving new spouse (a major potential issue when it comes to asset distribution in blended families/second marriages).

While legal action following your parent’s death may not be what you want, it’s sometimes necessary to protect your inheritance rights. If you find yourself in a dispute with other family members over inheritance rights, contact Onyx Law Group to seek legal advice from an experienced estate attorney. We offer expert assistance and valuable guidance on safeguarding your rightful inheritance.

In today’s blog post, we’ll discuss sibling inheritance laws and how to navigate related inheritance disputes.

Understanding Inheritance Laws in BC

Understanding Inheritance Laws in BC

I. Inheritance Law Promotes Respect for a Deceased Person’s Wishes

It’s important to note that laws vary depending on the province or territory. In British Columbia, estate law is governed by the Wills, Estates and Succession Act (WESA), which provides a legal framework for asset distribution after a person’s death. Under WESA, a will-maker has what is known as testamentary autonomy. That means they have the freedom to choose their own estate plan and to decide how their personal property will be divided after their death.

A high degree of deference is given to a deceased person’s wishes as set out in their Last Will and Testament. A parent who wants to give the majority of their valuable assets to one child and not others, or who wants to disinherit a child altogether, should provide their reasons for doing so. Providing a rationale for the decisions made in their Will is part of a proper estate plan, and can go a long way to preventing family disputes.

II. Certain Family Members Can Ask the Court to Vary a Will

Testamentary autonomy is not absolute. BC courts have the authority to intervene if the spouse or child(ren) of a deceased person does not think the Will makes “adequate, just, and equitable” provision for their proper maintenance and support. The court’s authority to vary an otherwise legally valid Will in favour of a child or surviving spouse of the deceased comes from WESA section 60.

III. Challenging the Fairness of Disinheritance or Unequal Inheritance

Suppose you are left out of your parent’s Will altogether, or you receive less than your brother or sister. Does the Court automatically vary the Will in your favour if you bring a legal action under WESA section 60?

If you are an independent adult, the short answer is no. Equal treatment of siblings is not always required to make adequate, fair, and equitable provision. There may be competing claims to the estate, valid reasons for unequal inheritance, or valid and rational reasons for one sibling to be left out of a parent’s Will altogether. Each of these issues is discussed in the following sections.

IV. Legal Obligations When a Parent Passes

BC estate law imposes a legal obligation on a parent to provide in his or her Will for any dependent children—that means minor children and may also include an adult child who is dependent because of a disability. The law does not impose a legal obligation on a parent to leave an inheritance to an adult child or children, nor does the law require that siblings be treated equally when it comes to their parent’s estate.

However, BC estate law does impose a moral duty toward adult independent children. A parent’s moral obligation is found in society’s reasonable expectations of what a person would do in the circumstances. Moral claims are not easy to assess. Generally speaking, if the size of the deceased parent’s estate permits—and in the absence of circumstances that negate the existence of such moral obligations—some provision for adult children should be made.

V. What is Fair and Reasonable After a Parent’s Death?

When evaluating a claim to vary a valid Will under WESA section 60 in favour of an adult child of the deceased, the court considers various factors to determine what is fair and reasonable in the circumstances. For example, if the Will is being challenged by a disinherited child or a sibling who feels they were not treated fairly compared to their brother or sister, the court will consider factors such as:

  • the relationship between the deceased parent and the child who brings the application to vary the Will (the claimant), including abandonment, neglect, or estrangement by one or the other;
  • the deceased person’s assets (e.g., the size of the parent’s estate);
  • contributions by the claimant;
  • the claimant’s reasonable expectations;
  • gifts/benefits given to the claimant while the deceased parent was alive;
  • the claimant’s financial needs and living situation; and
  • any misconduct or poor character of the claimant.

Some moral obligations are stronger than others. The court must examine all of the facts and weigh the strength of each claim. The court must also balance competing claims to a parent’s estate. Legal obligations owed by the parent take priority over moral obligations. That means the claims of the surviving spouse and dependent children take priority over those of adult independent children.

But as noted above, where the size of the estate permits the Will should address the moral obligations toward all beneficiaries. If the court finds unfairness, it will make an order varying the Will to make a provision that is adequate, just, and equitable in the circumstances in view of the parent’s moral obligations.

VI. Case Examples: Can My Brother Sue Me for My Inheritance?

If you believe you were unfairly left out of your parent’s Will or received less than your fair share of your parent’s estate, you can bring a will variation claim. If one of your siblings feels they were left out or received less than their rightful inheritance, they can do the same. When your brother or sister brings a will variation claim, you will be named in the legal action because you are one of the beneficiaries.

Let’s look at a few BC estate law cases in which a sister or brother sues their siblings over inherited property and assets. In this case, the court decided that there were valid and rational reasons for the father to disinherit two of his sons; they were estranged from their father and had a bitter relationship. The other sons had a stronger relationship with their father, making his decision to favour them valid and rational.

See Grewal v. Litt for a landmark case in which Jackson Todd, an estate and trust litigation attorney at Onyx Law Group, successfully obtained a substantial variation in favour of sisters who would have otherwise received only a small fraction of their parents’ estate compared to their two brothers. In that case, the parents die within a month of each other. The parents’ Wills left $150,000 to each of their four daughters, and the remainder of their multimillion-dollar estate to their two sons.

The judge in that legal action concluded that there should be a substantial increase in the gifts to the daughters based on factors such as the daughters’ contributions to the parents’ care in their later years when their health was failing, the gifts and benefits that the sons had already received during the parents’ lifetimes, and the parents’ adherence to traditional Sikh culture and values, which favoured sons over daughters.

For another example where a parent’s Will was varied to provide for daughters who had been treated unequally due to cultural beliefs, see this Prakash v. Singh, 2006 BCSC 1545 case. The mother left the vast majority of her estate to her two sons, with only small gifts to each of her three daughters. The sole reason for the unequal treatment of the siblings was the mother’s belief in the native Indo-Fijian tradition that sons should inherit all of their parents’ estate to the exclusion of daughters, except for token amounts.

The court in that legal action concluded that a substantial increase in the gifts to daughters was necessary to eliminate the effect of the discrimination, but not to the level of an equal distribution. As discussed above, BC courts are cautious not to rewrite a legally valid Will and entirely disregard wishes after a parent’s death.

Are There Other Ways for Siblings to Enforce Their Right to Inherit Property?

Are There Other Ways for Siblings to Enforce Their Right to Inherit Property?

A will variation claim is not the only way to ensure you inherit property as expected. There are other legal grounds by which siblings can challenge how a parent’s estate is distributed. Read on for other ways a brother or sister can contest a parent’s Will in BC.

1. Mental Capacity

A brother or sister can argue that the parent who made the Will did not have the mental capability to understand the nature and implications of the Will at the time it was made. Issues of mental capacity are commonly raised after an elderly parent dies, particularly if the parent suffered from dementia or Alzheimer’s disease. If the parent lacked mental capacity to make the Will, the court will declare that legal document invalid.

2. Undue Influence or Coercion

A child can challenge their parent’s Will based on undue influence. A Will that was made because of undue influence on the parent—for example, threats or pressure from a relative, domestic partner, caretaker, or other sibling(s), to the degree that the Will does not reflect the deceased’s true intentions—can be set aside.

3. Improper Execution of the Will

There are certain legal formalities that must be met to make a valid Will. For a Will to be valid, it must meet the formal requirements set out in WESA s. 37: it must be written and signed by the will-maker in the presence of two witnesses who also sign the Will. You can ask the Courts to invalidate your parent’s Will if it doesn’t meet those legal formalities. Conversely, if you want that Will to be enforced, you can ask the court to cure any defects.

4. Fraud or forgery

You can challenge estate planning documents that you believe were faked or forged. This is particularly common for handwritten Wills. To prove the Will is fraudulent, you’ll need a handwriting expert to support your case.

5. Ambiguity in the Will

A Will can be contested if it is ambiguous or unclear (e.g., the list of beneficiaries is not clearly defined). The Court can interpret the Will to resolve the ambiguity.

What Happens After a Parent’s Will Is Found Not Legally Valid?

What Happens After a Parent’s Will Is Found Not Legally Valid?

If your Will challenge is successful, the Will or parts of the Will are declared invalid. Your parent’s next most recent valid Will is used in that situation and governs how their estate is distributed. If there is no previous Will, the rules of intestate succession determine how the estate must be distributed—in other words, the equivalent of dying intestate.

Another Option: Challenge Gifts Made to Your Sibling Before Your Parent’s Death

A sibling can also challenge the validity of gifts made to their brother or sister during their parent’s lifetime. Such gifts may disproportionately benefit one sibling over others. Or, gifts made during a lifetime may make it so there are little to no remaining assets in the estate after the parent dies.

For example, in the case of Simard v. Simard Estate, 2021 BCSC 1836, the mother’s Will left her estate to all four biological children equally, but she had transferred much of her property into joint tenancy with only one of her children during her lifetime. The other siblings challenged that state of affairs. 

A similar situation arose in Pavlovich v. Danilovic, 2020 BCCA 239 where a sister successfully challenged the transfer of two properties from her father to her brother. The court was not satisfied that the father intended to gift the properties to the son and ordered that they be returned to the father’s estate.

Can My Brother Sue Me for My Inheritance? Can My Sister Sue Me After Our Parents’ Death?

Siblings can indeed sue to enforce their inheritance rights after a parent passes. The legal process can be complex and emotionally charged. Legal action can place a significant strain on family relationships. There are important time limits for contesting a Will in BC, and there are various rules and procedures to follow that make the legal process daunting. 

Legal guidance is strongly recommended if you find yourself in a family dispute following a parent’s death. Our team of experienced estate litigators can help. An experienced attorney at Onyx Law Group can help you evaluate your legal rights and options and the strength of the claim—whether it’s your claim, or a claim being brought by your sibling(s). We can also provide legal guidance on alternative dispute resolution methods, such as mediation, to reach a fair and amicable resolution of legal matters while preserving family relationships as much as possible.

Have questions about a topic?

Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at 
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