September 30, 2019

Where there’s a Will… there must be a fairer way

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The recent decision of the Supreme Court of British Columbia in Grewal v. Litt Estate[1] offers insights into inherent cultural and gender biases conflicting with statutory entitlements. This relatively uncomplicated case bears all the hallmarks of a Canadian success story, spanning five decades in the lives of a frugal immigrant family from Punjab, India who built up a multi-million dollar estate from farming. The devolution of this legacy unravelled cultural biases and the complicated dynamic between the parents and six children.

Nahar and Nihal Litt died in 2016 within weeks of each other.  They executed mirror wills in 1993, leaving everything to each other and on the deaths of both of them, the estates were to be divided among their six children.  From an estate worth $9 million, the four daughters were to receive $150,000 each and the residue was to be divided equally between the two sons.

The daughters sued to equalize the bequests.  They alleged the parents discriminated against and effectively disinherited them by adhering to Sikh cultural values and favoured sons over daughters.  All six children worked the farms, but the daughters enjoyed less freedom and were burdened with housework.  Yet the daughters cared for their elderly parents in the months before their deaths.  They alleged the parents failed in their moral obligation to provide financially for them.  The sons argued that dividing the residue equally amongst the siblings would defeat the testamentary freedom of their parents. The court ruled in favour of the daughters and ordered a variation of the wills[2]. The daughters each received 15% of the estate, while the sons received 20% each.  Principles of what is “adequate, just and equitable” were balanced against the circumstances of the testators, contemporary standards and overall testamentary autonomy[3]. Testamentary freedom supersedes what is “adequate, just and equitable”. Tataryn v. Tataryn Estate remains the leading case in British Columbia on variation of wills.

Courts consider many factors to assess the moral obligations of parents: the claimant’s relationship with the testator; the size of the estate; contributions from the claimant to the testator; the claimant’s reasonable expectations; reasonable standards of living; gifts made by the testator outside the will; reasons for disinheriting; financial needs and personal circumstances of claimant; misconduct or poor character of a claimant; and the existence of other claimants and beneficiaries[4].

British Columbia is the only Canadian jurisdiction where statute allows the court to vary a will in limited circumstances.  In Ontario, claims can be made by children and spouses if they can demonstrate that the deceased made inadequate provision for them and financial dependence can be proven.  Will challenges in Ontario are commonly made on grounds that the will-maker was mentally incapacitated or was unduly coerced when they signed their Will. In some limited cases where someone has contributed to the wealth of the deceased and there was an expectation that the deceased would leave them something a claim may exist against the estate.  A Will can also be voided if the testator’s decision to disinherit an obvious beneficiary is based on racial or religious discrimination[5].

The impact of Grewal in Ontario remains to be seen, but it sends a powerful message to will makers from older generations that traditional values and cultural influences are not always consistent with Canadian legal standards.  Grewal highlights inequalities stemming from cultural and religious biases across the world.  Estate planning lawyers should be mindful of these sensitivities and advise clients of the potential pitfalls of patently unequal bequests.

[1] Grewal v. Litt Estate 2019 BCSC 1154
[2] s.60 of the Wills Estates and Succession Act, SBC 2009, c.13
[3] Tataryn v. Tataryn Estate [1994] 2 S.C.R. 807, at pp.814-821
[4] Grewal, at para. 120 citing Dunsdon v. Dunsdon, 2012 BCSC 1274
[5] Re Leonard Foundation Trust (1990) 37 OAC 191

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