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Unequal Inheritance Between Siblings in Canada – Case Study

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  • Unequal Inheritance Between Siblings in Canada – Case Study

In Canada, the question of whether an inheritance should be distributed equally between siblings has been a subject of legal debate. In British Columbia, for example, the case of Grewal v. Litt showcased a situation where an unequal inheritance between siblings led to a legal challenge.

Our expert estate litigation lawyers can provide you with valuable insight on how to divide inheritance between siblings. If you have questions about your inheritance rights or want to discuss options for protecting yourself and your property, reach out to Onyx Law Group’s experienced family and estate lawyers for a free consultation.

This article discusses the implications of this case, addressing the question of whether an inheritance should be distributed equally among siblings and how the court can intervene to ensure a fair and equitable division of an estate.

Inheritance Law in BC

Inheritance Law in BC

In British Columbia, estate law is governed by the Wills, Estates and Succession Act (WESA), which provides a legal framework for the distribution of assets after an individual’s death. Under WESA, a will-maker has testamentary autonomy, meaning they have the freedom to decide how their estate will be divided among their beneficiaries.

However, this autonomy is not absolute. The court has the authority to intervene if a will does not make adequate, just, and equitable provision for the proper maintenance and support of the will-maker’s spouse or children. When evaluating a claim to vary a will under Section 60 of WESA, the court considers various factors, including the relationship between the will-maker and the claimant, the size of the estate, contributions made by the claimant, the claimant’s financial needs, and any misconduct or poor character of the claimant. Additionally, the court may consider the greater need of certain beneficiaries when determining whether the provisions of the will are adequate.

As demonstrated in the Grewal v. Litt case below, while there is no legal obligation to divide an estate equally among siblings in BC, the court may step in to ensure a fair and equitable distribution of assets based on the specific circumstances of the case. The equal distribution of assets might depend on the moral duty of the testator towards their adult children, which can be negated while showing sufficient cause, as described in Tom vs. Tang.

A Case of Unequally Dividing an Estate Among Children in a Will in BC

Unequally dividing an estate among children in a will  

Nahar Grewal died on February 2, 2016 at age 88 and his wife, Nihal, died on March 22, 2016, at age 89. In 1993, Nahar and Nihal executed mirror wills (the “Wills”), which left everything to one another, and, on the passing of both of them, their estates were to be divided among their six adult children as follows:

(a)      $150,000 in cash to each of their four daughters; and

(b)      the residue to be divided equally between their two sons.

As of the date of death of the parents, the two primary assets of the estates were the family home on East 62nd Avenue in Vancouver, BC and farm property on Cambie Road in Richmond, BC. As of trial, both properties had been sold and the current net value of the combined estates was between approximately $9 million and $9.3 million. Under the Wills, and assuming a net value of the estate of $9 million, the daughters would collectively receive about 6.6% and the sons 93.4%. In dollar terms, each of the sons would receive $4.2 million, while the daughters collectively would receive $600,000.

Challenge to Unequal Division of Estate

Challenge to unequal division of estate

The daughters commenced proceedings seeking variation of the Wills, pursuant to s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (the “WESA”), so that the residue of the estate be divided equally among the six children. The daughters took the position that, by the Wills, they were discriminated against by the parents and effectively disinherited, based on the fact that they are daughters and on the parents’ adherence to traditional Sikh culture and values, which favoured sons over daughters. There was no dispute among the parties in Grewal v. Litt that the parents owed a moral obligation to the daughters and that the Wills failed to make adequate provision to satisfy that obligation. There was, therefore, no dispute that the Wills must be varied. Instead, the essential dispute concerned how the Wills should be varied to accomplish provision for the daughters that is adequate, just and equitable, and the extent to which the parents’ testamentary autonomy should be respected. Our associate counsel Jackson Todd was co-counsel for the daughters on this landmark wills variation case and succeeded in obtaining a substantial variation of the large estate in favour of his clients.

General Principles to be Applied in a WESA s. 60 Wills Variation Claim

General principles to be applied in a WESA s. 60 wills variation claim

On an application to vary a will, the court must ask itself whether the will makes adequate provision and if not, order what is adequate, just and equitable:  Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807.  “Adequate, just and equitable” is determined in the specific circumstances and in light of contemporary standards.  Balanced against this consideration is the principle of testamentary autonomy. However, testamentary autonomy must ultimately yield to what is “adequate, just and equitable.” The claims in Grewal v. Litt concerned a will moral obligations toward independent adult children. With respect to such claims, provided the size of the estate permits, and in the absence of circumstances that negate the existence of such moral obligations, some provision for such children should be made to ensure they receive their fair share in a person’s property.

There are No legal Obligation to Treat Siblings Equally when Dividing Estate Assets

In the absence of express reasons for an unequal distribution, contemporary standards create a reasonable expectation of children sharing equally in a parent’s estate. However, there is no legal obligation to divide an estate equally. The fact that an independent adult child has not received the same provision under the will as the will-maker’s other child or children, will not, of itself, constitute a breach of the will-maker’s moral duty. The adequacy of a moral claim is not easy to assess, especially where (as in Grewal v. Litt) a child has not been disinherited, but has received something less than her sibling or siblings. In the post-Tataryn era, the following considerations have been accepted as informing the existence and strength of a will-maker’s moral duty to independent children:

  • relationship between the will-maker and claimant, including abandonment, neglect and estrangement by one or the other;
  • size of the estate;
  • contributions by the claimant;
  • reasonably held expectations of the claimant;
  • standard of living of the will-maker and claimant;
  • gifts and benefits made by the will-maker outside the will;
  • will-maker’s reasons for disinheriting;
  • financial need and other personal circumstances, including disability, of the claimant;
  • misconduct or poor character of the claimant;
  • competing claimants and other beneficiaries.

Evaluating the moral claims to the estate in Grewal

Madam Justice Adair was not persuaded that the parents’ decision to treat their children unequally should be rejected as motivated solely by unacceptable discrimination against daughters. However, on a consideration of all of the other factors listed above, Madam Justice Adair concluded that there should be a substantial increase in the gifts to the daughters based on other factors, particularly the gifts and benefits that the sons received during the parents’ lifetimes, the influence of cultural values on the parents’ choices, and the daughters’ contributions to the parents’ care in their later years when their health was failing.

Equal division of the estate not the only fair result

During their lifetimes, the parents never treated the children equally. Against that background, Madam Justice Adair was of the view that the daughters could not have had a bona fide expectation, based on the parents’ conduct, that they would each receive a one-sixth share of the estate on the parents’ death. Provision that was adequate, just and equitable in the circumstances in view of the parents’ moral obligations to the daughters, while respecting (to the appropriate degree) the parents’ testamentary autonomy, was division of the estate 60% in favour of the daughters and 40% in favour of the sons. Put in other terms, it was held that the Wills did not make adequate provision for the proper maintenance and support of the daughters and as such it was ordered that the Wills be varied to the effect that each daughter was entitled to 15% of the residue and each son was entitled to 20% of the residue.

Objective Judicious Parent Test in Wills

In the recent case of Tom v. Tang (2023), the Court of Appeal for British Columbia addressed using the Objective Judicious Parent Test in the will modification case. This dispute revolved around Mrs. Tom’s last will, which she modified before her death, the will favored only her two children, daughters – Rose and Samsun, for their primary care of her in her last three years of life. The court noted that Rose and Samsun would get 42% of their mother’s estate assets from this will. Whereas the three other children would get around 5%. Therefore, the three other children opposed the estate’s distribution.

In delivering the judgment, Justice Fenlon emphasized the need to assess a will-maker’s moral responsibilities using the objective criterion of a reasonable will-maker, as prescribed by the Tataryn decision. In the Tataryn case, the court put out a ‘valid and rational test’ that described moral responsibilities as objectively evaluated based on society's reasonable expectations of what a wise person would do in the circumstances, considering present community norms.

Despite acknowledging the legitimacy and rationale of Mrs. Tom’s reasons for favouring Rose and Samsun, the court determined that the uneven distribution fell short of the criteria of a responsible parent. It took into account the children’s contributions to the family’s economic status, as well as their ongoing care for their mother.

Finally, the court amended Mrs. Tom’s will to guarantee a more fair and equal distribution among all of her children, reflecting both her wishes and the objective criterion of a reasonable will-maker. The ruling clarified that just having legitimate and reasoned arguments is insufficient; the will-maker must also fulfil the objective criterion of fairness and reasonableness required of a prudent parent.

Steps to Taken to Challenge the Unequal Distribution of Assets

No legal obligation to treat equally when dividing an estate

There are various grounds under the law where a will can be challenged, such as lack of mental capacity of the deceased, undue influence, fraud or forgery, non compliance with formal requirements, ambiguity or errors in the will, and will variation claims. The right thing to do in such a case is to consult an estate lawyer.
The steps involved in contesting a will typically include:

Consulting an expert estate litigation lawyer is necessary. An estate litigation lawyers can evaluate the will to see whether you can oppose it and advise you on your legal rights.

Gather evidence and proof to oppose the will if necessary. Medical records of testamentary incapacity or witness testimony of improper influence may be included. In case of unequal distribution of assets, the parties can gather proof where they can reasonably show the care and responsibilities they have shared.

Before taking legal action, keep in mind that only Beneficiaries, Interstate Heirs, and Persons with a financial interest in the estate are entitled to challenge the will. If you are one of the mentioner parties, you should give the courts and the will’s beneficiaries a notice of disagreement or legal action explaining your issue. At this step, both sides will present evidence and information to the court, conduct cross-examinations, and hold a hearing.

Frequently Asked Questions

Can you exclude one child from a will?

Yes, you may disinherit a child from your will under the Wills Variation Act. However, British Columbia law also allows the excluded child or spouse to dispute your will after death. It’s crucial to consider the implications of excluding a child from your will and how it may impact your estate plan.

Can I give more than 50% of my property to one child in my will?

Yes, but there needs to be a valid express reason, you should explain why you intend to give most of their property to one child or the other child(ren) may contest their parent’s will in court and after death. The potential success or failure of such cases depends on the disparity between siblings’ earnings, why parents give children uneven inheritances, Estate tax and income tax situations, and trust planning difficulties. 

What is the Limitation period to challenge a will on the grounds of unequal distribution of assets?

It is necessary to abide by the limitation period given for the contesting will If you’re the surviving spouse or child of the will-maker asking to change the will under s. 60 of WESA because you weren’t given a sufficient, just, or equal inheritance because the restriction period for each ground is different. You must file a suit within 180 days of the British Columbia Supreme Court granting the probate.

Have questions about a topic?

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