A fairly recent case, where cultural traditions and concomitant familial roles were material considerations is that of Grewal v. Litt, 2019 BCSC 1154. Specifically, the Supreme Court of British Columbia outlined the factors that a trier of fact will consider when deciding whether to vary a will that makes unequal distribution of the estate amongst independent adult children. In this case, the cultural reasons and rationale used by the testators (a husband-and-wife couple) to draft their wills was a crucial issue.
Specifically, the husband and wife passed away within months of each other in 2016, leaving behind two independent adult sons and four independent adult daughters and an estate worth approximately $9million accumulated mostly through farming/farmland. The approximate distribution of the estate pursuant to the will would leave the daughters each with $150,000 and the brothers collectively with $8.4million. The daughters applied to vary their parents’ wills, which application the brothers opposed. Counsel for the daughters took the court through various arguments, with the central point being that they were discriminated against due to their gender. They pointed to South Asian cultural norms wherein, for centuries, parents would leave almost everything to their sons. Of particular note, were the overwhelming contributions of the daughters to the family business, farming, household, and to their parents’ care in their old age.
At direct battle was the sons’ argument that their parents’ testamentary autonomy should be respected versus the daughters’ argument that the will was unfair and did not meet the moral obligation of the testators to make adequate provision for them. Accordingly, the court undertook a detailed analysis of Section 60 of the Wills, Estates and Succession Act, which states that:
Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
If the court finds that adequate provision has not been made then it will make an order varying the will to make what it deems as an adequate, just and equitable distribution for all of the children. The court does not rewrite the will and nor is the court bound to making an equal distribution. Every matter is fact specific. Ultimately, the court, in this case, decided that the will was unfair and ordered that the estate be redistributed as follows: $1.35million to the daughters and $1.8million to the sons.
While most provinces do not let non-dependent adult children challenge the fairness of their parents’ wills, the Province of British Columbia allows those people who are aggrieved their right to challenge a will. That doesn’t mean that testators have no say in how their estates will be distributed. For example, it is still possible to disinherit a child or cut a spouse out of a will if there are valid, rational and provable reasons for doing so. In the end, it is a balancing act.
If you or anyone you know has been disinherited or otherwise treated unfairly in a will, please contact Origin Law Group to speak to one of our Estate Litigation Lawyers.
Blog written by Subreen Bedi