Wills & Estate Planning

Sisters Successful in Seeking a More Equitable Share of Parents’ Estate

Written on behalf of Cherkowski Marsden LLP

Four sisters were successful in a recent decision of the Supreme Court of British Columbia in obtaining an order to redistribute the proceeds of their parents’ sizeable estate among themselves and their two brothers. Of the assets totalling approximately $9 million, each daughter had been left an inheritance of only $150,000 with the remainder to be divided by the two sons.

Background Facts

The parents had immigrated to British Columbia from India in the 1960s. The father obtained work at a local sawmill, and over time, the family acquired several pieces of real estate, which included several farm properties.  Each of the children was expected to work on the farms, particularly in the summer months when they were not in school. All six children made equal contributions to the farms. In addition to working on the farms, the four daughters were also expected to complete a significant portion of the domestic work at the family home. The sons were permitted time off of work to participate in extra-curricular activities and sports throughout their schooling, while the daughters were not.

The parents prepared Wills in 1993 in British Columbia. One of their sons assisted them in communicating their instructions to the lawyer, and so was aware of the division of property. However, his parents swore him to secrecy and he was not permitted to tell his sisters.

The father executed two new Wills in India in 1994 and 2006. In those Wills, he claimed to have given his daughters their portion of her estate in the form of their dowry at the time each was married. His Indian Wills dictated that his estate be divided equally between his two sons.

In 2006, the father suffered a heart attack and the son who was aware of the contents of the Wills spoke with his parents about changing the distribution of their estate. He felt his sisters had been treated unfairly and worried the siblings would be pitted against each other after their parents’ deaths. He claimed that his father had been open to changing the Wills, but his mother had not.

The last few years of both parents’ lives were difficult, health-wise. Their care and management largely fell to the two eldest daughters. In February of 2016, the father passed away, with the mother following less than two months later.

Variation of Wills

The Court found that neither parent had made adequate provisions for the support and maintenance of their daughters in any of their Wills.

The daughters sought a variation of the BC Will pursuant to s. 60 of the Wills, Estates and Succession Act, which would see each of the six siblings receiving an equal portion of the estate. They argued that the court should not consider the principle of testamentary autonomy, which allows a testator to choose exactly what will happen to their estate after they die. The court disagreed, upholding the parents’ wishes that the sons be treated equally to each other with an elevated position over the daughters. Further, the court upheld that the daughters would also receive equal shares, as the parents had intended. The Court, however, did hold that the daughters were each entitled to a substantial increase in their share, in consideration of the following factors:

  • the gifts and benefits the sons received in their parents’ lifetimes;
  • the influence of cultural values on the parents’ decisions with respect to their estates; and
  • the daughters’ contributions to their parents’ care.

Ultimately the Court awarded a split of the estate that saw 15% going to each of the daughters, and 20% to each of the sons.

Estate Planning Considerations

This case represents the fact that while considerable weight is given to testamentary autonomy, the Wills, Estates and Succession Act gives courts a good deal of control if a Will is deemed inequitable to surviving immediate family members. When planning an estate, it is crucial to seek the advice of an experienced estate planning lawyer who will advise on whether a plan is likely to withstand legal scrutiny if challenged.

The estate lawyers at Cherkowski Marsden LLP in Vernon are extremely knowledgeable with respect to all aspects of estate planning and Will drafting. They have extensive experience drafting countless custom estate plans that range from simple to highly complex. For questions and advice about your estate planning needs, please contact their office online or by phone at 250-308-0338.