8 March 2023
Litigation & Dispute Resolution
When Women Get a Disproportionate Part Of a Will and/or Estate Due to Cultural Traditions
This article is part of a series of educational blog posts created by a team of Watson Goepel women lawyers in light of International Women’s Day 2023, to empower, celebrate, and encourage women in Canada.
In certain cultures, women are gifted substantially less under a will compared to their brothers.
In Prakash and Singh v Singh et al, 2006 BCSC 1545, the deceased left a net estate of approximately $550,000. She willed $10,000 to each of her three daughters and the residue of the estate equally to her two sons ($260,000 each). At the time of the trial, the fair market value of the home had risen, raising the value of the estate to $763,000.
Two of the daughters commenced legal proceedings against their brothers. The remaining daughter accepted what was given to her under the will and was not a party to this litigation.
Factors the court considered
Factors the court considered in this case were:
- the sons made payments throughout the years to assist their parents with the home.
- all the children lived with their parents rent-free for some time during their adult lives.
- a son and his family moved in with his mother to care for her for the remaining 3 years of her life rent-free. While he and his family lived in the home, they made improvements to the home.
- all the parties’ financial positions were somewhat relative of each other.
- the two sons and their spouses put in more time and gave more assistance to their parents compared to the plaintiffs but the court found the plaintiffs were diligent in visiting and helping their mother.
Wills Variation – The Law
If a will does not, in the court’s opinion, make an adequate provision for the proper maintenance and support of the testator’s children, the court may, under s. 2 of the Wills Variation Act, order some other provision for the children that the court thinks is adequate, just and equitable in the circumstances. In determining what is adequate, just, and equitable, the court takes into account both the legal and moral obligations of the testator just before death.
Applying the law in Prakash and Singh v Singh et al, 2006 BCSC 1545
The court found that there was no issue pertaining to financial need as far as any of the children were concerned.
There were no outstanding legal obligations owed by the deceased to any of her children at the time of her death. Although the sons had financially contributed to the home, the court found that this was not an agreement that would entitle them to a greater part of the estate. They were gifts.
When the deceased willed her sons the majority of the estate, the court found that she fell short of moral obligations according to the moral norm of our Canadian society. Mr. Justice Rice held at paragraph 59 of the decision:
“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.”
Findings
In weighing the facts to the law, the court, amongst other things, awarded the plaintiffs (two daughters) 1/5 of the estate to each one and the residue equally to the sons. There was no will variation for the one daughter who waived her claim and took no position with the litigation.
Meet The Author
Janet is a Partner, and the Personal Injury Group Leader at Watson Goepel LLP. She has appeared before the Provincial Court of British Columbia, the Supreme Court of British Columbia, Supreme Court Chambers and the British Columbia Court of Appeal, on a variety of matters. Janet also acts as a mentor to female lawyers through the Canadian Bar Association’s Women Lawyers Forum.
