Family, Estates & Trusts 



Can You Have Unequal Division of Estate in a Will?

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.


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