Our estate litigation lawyers know that after the sadness of having a loved one pass away, it can come as a shock and disappointment to find out you were left out of the Will or the Estate for no good reason. You may believe that the will doesn’t represent the will maker’s true intentions. Or that you didn’t receive your fair share. In such cases you may be able to challenge the will. Challenging Wills generally happens in the following common scenarios:
- One of the children or the child is left out of the Will or does not receive anything fair under the Will;
- The deceased’s spouse is left out of the Will and instead all the estate has been given to children;
- The deceased leaves his/her estate to his spouse, but unbeknownst to others, he/she had other children and spouses that no one knew about; etc
What Does BC Law Say About Challenging A Will? Wills Variations Claims
In BC, generally a will maker may divide the contents of their estate as they see fit. However if a child or spouse is unhappy with the contents of a will they may challenge it due to unfairness. This is called a Wills Variation Claim.
In making a will, a parent may be guided by their cultural traditions and or beliefs. However, these traditions and beliefs should result in a will that gifts the parent’s property in way that an adequate, just and equitable provision is made for their spouse and children.
Section 60 of the Wills, Estates and Succession Act permits a will-maker’s surviving spouse or children to ask the Court to re-write the will-maker’s will. Section 60 states:
“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.”
What Must the Courts Find In Order to Change A Will In BC?
In order for the Court to exercise its power to change a will, the Court must first find that the will-maker did not make adequate provision for the proper maintenance and support of their spouse or children. Without such a finding, the Court is obligated to give effect to the parent’s wishes as set out in the will.
The Supreme Court of Canada in Tataryn v. Tataryn Estate  2 SCR 807 addressed the two competing interests that are raised in wills variation cases:
- On the one hand, the autonomy of the will-maker to gift their property as they see fit and on the other hand,
- Ensuring adequate, just and equitable provision for the spouse and children of the will-maker.
However, the Supreme Court of Canada determined that autonomy is a limited right. For example, a parent leaving her entire estate to her cat because she dislikes her children would likely have the Will tossed by the Court. Similarly and more realistically, cultural beliefs such as racism, sexism, etc should not guide how estate is divided. See an example of a recent BC case below:
Sexist Cultural Beliefs are Grounds for Challenging Wills
The recent case of Grewal v. Litt, 2019 BCSC 1154 addressed challenging a will in BC based on a will influenced by cultural traditions / beliefs. The facts of Grewal v. Litt are:
- the will-makers, a husband and a wife, passed away within 2 months of one another
- the will-makers had 6 children, 4 daughters and 2 sons
- the parents executed mirror wills which left everything to one another
- in the event that they both passed away, their 4 daughters were to each receive $150,000. The residue was to be equally divided between their 2 sons
- the value of their estate was approximately $9 million
The 4 daughters sought to challenge the wills. They requested that the residue be equally divided among the 6 children. The daughters argued they were disinherited based on the parents’ adherence to traditional East Indian culture. Culture which favored sons over daughters.
The sons agreed that the wills ought to be varied. However, to the extent possible the will-makers’ testamentary autonomy should be respected. In addition, the sons argued that the law does not mandate equal distribution of the estate.
The Court overturned the Will.
The daughters successfully relied on the earlier case Prakash and Singh v. Singh et al 2006 BCSC 1545 in which the Court stated:
- In terms of moral obligations, Mrs. Singh chose an option that fell short, according to the moral norms of our Canadian society. A variation is needed.
- In modern Canada, where the rights of the individual and equality are protected by law, the norm is for daughters to have the same expectations as sons when it comes to sharing in their parents’ estates. That the daughters in this case would have this expectation should not come as a surprise. They have lived most of their lives, and their children have lived all of their lives, in Canada.
- A tradition of leaving the lion’s share to the sons may work agreeably in other societies with other value systems that legitimize it. 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.
It should be noted that in Grewal v. Litt, the wills were silent on the will-makers’ reasons for dividing the estate in the manner that they did.
Varying A Will Versus Considering the Will Maker’s Wishes
Even if a Will is varied, the Court still can divide the estate by considering the will maker’s wishes. In other words, if you received nothing from the estate and challenge your parent’s will successfully, that doesn’t mean that you will now receive 100% of the Estate. The court may still consider your parent’s relationship and feelings towards you in making the Will and order something that also takes his/her wishes into account.
For example, in the case above, the Court was not persuaded that the will-makers considered themselves bound by East Indian cultural traditions. The courts noted to assume “the Parents felt bound by East Indian cultural tradition to divide the Estate in a particular way itself reflects stereotypical thinking about what “traditional” East Indian parents would do.” However, the Court found that traditional cultural values did have some influence on the will-makers in how they treated their children, both while alive and in the wills.
The Court varied the wills. But did not divide the estate equally among the 6 children. Rather each daughter received 15% of the estate and the sons each received 20% of the estate.
Although autonomy is limited, Grewal v. Litt demonstrates that despite a finding that a will needs to be varied, the Court will still consider the parent’s wishes when re-writing the will.
Challenging a Will can be complicated. Our lawyers have extensive expertise in this area of law and will bring their experience to the table to help you.
If you are thinking of challenging a Will or want to uphold it, contact our award winning Estate litigation lawyers by calling 604-974-9529 or get in touch.