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Estate Law, WESA s.60, Wills Variation

Cultural Tradition Favouring Sons Rejected by BC Courts

Equal treatment of siblings is not always required when dividing an estate in BC. However, variation of a will may be in order if unequal treatment of sons and daughters is based on cultural traditions that do not align with modern Canadian values. Contemporary standards create a reasonable expectation of children sharing equally in a parent’s estate.

Sons inherited lion’s share of estate for cultural reasons

In Prakash v. Singh, 2006 BCSC 1545, a widowed mother’s will gave gifts of $10,000 to each of her three daughters. The mother’s will, executed in 1999, provided that the residue of her $550,000 estate should be divided equally between her two sons. That amounted to the daughters receiving about 1.3% of the estate while the sons received about about 48% each. The main reason for the unequal treatment 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. After the mother’s death in 2004, two of the daughters brought a BC wills variation claim, arguing that the will did not make adequate provision for them according to what is adequate, just and equitable in the circumstances, and should be varied to provide each child with an equal or near equal share of their mother’s estate.

No valid and rational reason for unequal treatment of siblings

There were no outstanding legal obligations owed by Mrs. Singh to any of her children at the time of her death, and there was no issue of need as far as any of the children were concerned. All five of the siblings were employed and reasonably well-off financially. In terms of mutual love and affection, and non-financial contributions to the parents, there was little to distinguish any of the sons and daughters. This was not a case of parent-child estrangement which may in some circumstances amount to a valid and rational reason for disinheritance or unequal treatment in a will. All five of the Singh children were devoted to their parents and giving of their time generously to help their parents; in return, the parents loved and cherished their sons and daughters equally.

Exclusion of daughters did not meet moral norms of Canadian society

After reviewing all of the evidence, it was clear that Indo-Fijian cultural traditions were the primary reason the sons were disproportionately favoured over the daughters. Rice J. ordered the mother’s will be varied, finding that Mrs. Singh chose an option that fell short of her moral obligations according to the norms of Canadian society:

[58] In modern Canada, where the rights of the individual and equality are protected by law, the norm is for daughters to have the same expectations as sons when it comes to sharing in their parents’ estates. That the daughters in this case would have this expectation should not come as a surprise. They have lived most of their lives, and their children have lived all of their lives, in Canada.

[59] A tradition of leaving the lion’s share to the sons may work agreeably in other societies with other value systems that legitimize it, but in our society, such a disparity has no legitimate context. It is bound to be unfair, and it runs afoul of the statute in this province.

How should the mother’s estate be divided?

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. This is because the BC courts are cautious not to rewrite a will, and reluctant to disregard a will-maker’s legitimate motives, especially where, as in this case, the wills variation claimants are independent adult children. Rice J. noted that there was a rational and reasonable basis to favour the sons moderately, regardless of cultural tradition. The sons helped with the mortgage on Mrs. Singh’s home, and Mrs. Singh lived with the sons and their families for many more years than she did with her daughters, which may have motivated her to feel a moral obligation to give the sons more. There was no variation for the third daughter who waived her claim to any more than $10,000 provided in her mother’s will. Rice J. awarded one-fifth of the balance of mother’s estate to each of the two daughters who brought the wills variation claim. The residue was to be divided equally between the sons.

Bottom line on traditional reasons for unequal treatment of children

In modern Canada, where the rights of the individual and equality are protected by law, the norm is for daughters to have the same expectations as sons when it comes to sharing in their parents’ estates. Where a will-maker has chosen an option that falls short of his or her moral obligations to her children according to the norms of Canadian society, the court will order a variation.

See also: Our recent blog post on the case of Grewal v. Litt, 2020 BCSC 1154, in which one of our Onyx estate litigation lawyers, Jackson Todd, successfully obtained a substantial variation for his female clients who were treated unfairly by their parents, partly based on cultural traditions.