All's Fair in Love and Wills
Aug 26, 2019
A new case out of BC, Grewal v Litt, 2019 BCSC 1154 ("Grewal"), brings to light the generational and cultural conflicts that often face Canadian families. This case arises out of a $9.3 million estate dispute. The parents died within months of each other in 2016. They had 6 adult children: 4 daughters and 2 sons. The daughters claim that their parents discriminated against them based on their gender and essentially disinherited them due to their gender and the parents’ adherence to their traditional culture and values which favours sons over daughters.
The estate was made up of two valuable properties, a farm and family home valued at combined 9.3 million. The daughters were each left $150,000 and the brothers split the residue of the estate (or about 6.6% for the daughters and the remaining 93.4% to the sons).
The BC legislation is unusual in that s. 60 of the Wills, Estates and Succession Act allows the Court to alter a will if it opines that the testator did not make adequate provisions for the proper maintenance and support of their spouse or children.
Also unusual in Grewal was that all the parties, including the brothers, agreed that the parents owed a moral obligation to the daughters and that their parents´ wills failed to make adequate provisions to satisfy that obligation. The conflict was how to divide the 9.3 million estate among the children.
The Court balanced what was adequate, just and equitable with the autonomy of the testators. In particular, the Court considerations included the fact the children were independent adults, the size of the estate, conduct of the parties, and whether there were circumstances which would negate the existence of moral obligations. The Court was clear that any variation of will and interference with testamentary autonomy should be minimized.
The Court considered the parents treatment of the children throughout their lives when determining if there was preference given towards their male offspring as well as if inter vivos gifts fulfilled their moral obligations.
The daughters were advocating for an equal split of the estate among all the siblings while one of the brothers argued he should receive 37% of the estate due to his work on the farm with the remaining residue split equally. The last brother suggested the estate could be split so the reflected the split of the value of the estate at the time when the wills were written, so that the daughters would split 20% of the estate while the two sons receive 40% each.
The Court considered a number of factors and concluded that wills have to be altered to substantially increase the gifts to the daughters but balanced that deference to the testator´s autonomy and rejected an outright even split. Instead, the Court altered the will such that the daughters each received 15% of the estate while the brothers each received 20%.
In Ontario, we do not have a similar provision in our legislation. The Ontario Court of Appeal has been clear that there is no statutory duty to provide for independent adults here. However, as in BC, a testator does not have an absolute right to dispose of their property. The Courts will cautiously consider public policy considerations in some circumstances. The Courts rarely exercise public policy concerns to alter a will, especially in the case of a private estate.
However, In Ontario, any dependants who have not been adequately provided for in the wills of loved ones may be eligible and able to bring a dependant support claim pursuant to the Succession Law Reform Act. A SLRA dependant claim is actually available to more classes of people than a will variation under s. 60 of the BC legislation. A will variation under s. 60 is only available to a spouse (either married or common-law) and children whereas under the SLRA it is also open to ex-spouses, romantic partners in some circumstances if they are parents of the deceased´s child, parents, grandparents, siblings, and grandchildren if the deceased was under a legal obligation to provide support immediately before their death.
Overall, we can conclude that Courts in all jurisdictions will carefully consider whether they should interfere with a testator`s autonomy. Even when they intervene, a careful balancing exercise will be done, such as in Grewal where the court re-appropriated the estate but in deference to the testator`s wishes, did not equalize the division.
Finally, remember that while in BC, the Court has a mechanism to interfere when the decision is not keeping in the with the norms of Canadian society, judges in Ontario are more restricted. This is why it is critical to discuss potential issues with a lawyer.
Shannon Wood is author of this blog and member of the Estate Litigation practice group at the firm. If you are struggling with a contested and imbalanced will, our lawyers are here to help. You can reach Shannon at 647-427-3362 or firstname.lastname@example.org