A British Columbia court recently agreed to vary the wills of two parents that provided significantly less for their four daughters than for their two sons.
A father and mother (together the “Parents”), originally from India, lived in British Columbia. The father died in February 2016 at the age of 88. The mother died almost two months later at the age of 89.
The Parents had six children together; two sons (together the “Sons”) and four daughters (together the “Daughters”), all of whom are now in their 50s and 60s.
In 1993, the Parents 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 the Siblings in the following manner:
(a) $150,000 in cash to each of the Daughters; and
(b) the residue to be divided equally between the Sons.
As of the date of death of the Parents, the net value of the Parents’ combined estates was between approximately $9 million and $9.3 million (the “Estate”).
The Daughters sought a variation of the Wills, pursuant to s. 60 of the Wills, Estates and Succession Act, which reads:
“60. 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.”
The Daughters sought to have the residue of the Estate divided equally among the six siblings. The Daughters claimed that in the Wills, they were discriminated against by the Parents and effectively disinherited, based on the fact that they were daughters and on the Parents’ adherence to traditional Sikh culture and values, which favoured sons over daughters.
One of the Sons, the sole executor, in his personal capacity, agreed that the Wills did not fulfill the Parents’ moral obligations to the Daughters, and acknowledged that the Wills should be varied. However, as the executor, he did not agree that the Wills were the result of discrimination or adherence to traditional values, and he did not agree that the Estate should be divided equally among the Siblings. He stated that, to the extent possible, the Parents’ testamentary autonomy should be respected, and that the law does not mandate equal distribution of the Estate.
Overall, there was no dispute among the siblings that the Parents owed a moral obligation to the Daughters, and that the Wills had failed to make adequate provision to satisfy that obligation. Instead, the essential dispute is over how the Wills should be varied to accomplish provision for each of the Daughters that was adequate, just and equitable, and the extent to which the Parents’ testamentary autonomy should be respected.
The court began by stating that, pursuant to leading case law, 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; against this consideration is balanced the principle of testamentary autonomy. However, testamentary autonomy must ultimately yield to what is “adequate, just and equitable.”
With respect to claims concerning the testators’ moral obligations toward independent adult children, provided the size of the estatesopermits, and in the absence of circumstances that negate the existence of such moral obligations, some provision for such children should be made.
The court stated:
“There is no dispute that the Parents owed a moral obligation to the Daughters and that the Wills failed to make adequate provision to satisfy that obligation. There is, therefore, no dispute that the Wills must be varied. The essential dispute concerns 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.”
With regard to the Daughters’ claim of discrimination, the court concluded:
“I am not persuaded that, in making the Wills, the Parents considered themselves bound by East Indian cultural traditions, and I reject the argument that the Parents’ reasons for dividing the Estate in the way reflected in the Wills were driven solely by adherence to those traditions, […] [though] traditional cultural values had some influence on the Parents in how they treated the Siblings, both when the Parents were alive and in the Wills.”
Given the size of the Estate, the court concluded that the Wills should be varied to provide a significant increase in the size of the gifts to the Daughters, without repudiating altogether the Parents’ testamentary autonomy.
However, the court disagreed with the Daughters’ position that the Estate should be divided equally among all the siblings.
As a result, the court divided the Estate 60% in favour of the Daughters and 40% in favour of the Sons, with the Daughters’ 60% share divided equally among the four of them (or $1.35 million each), and the Sons’ 40% share divided equally among the two of them (or $1.8 million each).
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