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Estate matters can be emotionally charged and made more complex when it comes to the question of whether cultural norms and traditions can justify disinheriting one child over another.

In British Columbia, under section 60 of the Wills Estates and Succession Act (WESA), a child can apply to vary a will if adequate provision is not made by a parent’s estate. The Courts in BC recognize that parents have a moral obligation to provide for their children, even if they are independent adults. As set out in Tataryn, v Tataryn, a landmark case setting out a parent’s duty to their adult independent children, this ‘moral duty’ is assessed on the basis of what a judicious parent would do in the circumstances.  The case emphasizes the moral duty must be in line with contemporary community standards.

If sons and daughters are treated unequally in a will based on traditional cultural norms or practices that may not align with modern standards and values, for example, there may be grounds for a wills variation claim. This also means that the law is likely to evolve as modern standards and values change.

Canada embraces different cultures and customs. But there are instances where cultural practices may conflict with Canadian values of inclusion and equality, particularly in matters of inheritance.

In the case of Prakash and Singh v. Singh et al, 2006 BCSC 1545, the mother passed away and was survived by her five children: three daughters and two sons. The estate valued at $550,000 was divided so that $10,000 would go to each of her three daughters and the remaining $520,000 was to be divided equally amongst the two sons.  The daughters brought a wills variation claim on the basis that the estate did not make adequate provision for them.

The court found that all five children were financially independent and had a good relationship with their parents, giving their time generously to their parents as they aged. Ultimately, the rationale for the unequal division of the estate was based on the deceased’s cultural tradition that the sons should inherit the estate. Mr. Justice Rice varied the will in favor of the daughters, granting them one-fifth of the estate. In coming to this decision, Mr. Justice Rice reasoned:

“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.”

Laws exist to provide protection for beneficiaries and disinherited family members to ensure fair distribution of an estate. If you have questions about estate matters, our experienced team can help. Contact us for a free consultation.

 

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