Wills & Cultural Considerations, Sons vs. Daughters: Can a Will be Changed or Altered After a Loved One Passes Away, Even if I Have Been Left Out for Cultural Reasons? The Answer is Yes.
We are often asked by prospective clients who feel they have been disinherited or unfairly dealt with in a spouse or parent’s will, if there is anything that can be done about it. Specifically, our clients often want to know if there is some way in which the terms of a will can be changed after a loved one passes away. Depending on the circumstances and your relationship to the will maker, the answer is generally yes. This is because a will make has an obligation to make adequate provision for the proper maintenance and support of their spouse or children. This can even be the case where the loved one has their own motives or reasons for disinheriting someone. For example, consider the following case in which alleged cultural norms (namely, of leaving the majority of the estate to the sons instead of the daughters) were successfully challenged, resulting in an increase of approximately $1,200,000 going to each of the children who were largely cut out of the wills.
In Grewal v Litt, 2019 BCSC 1154 Mr. and Mrs. Litt both had passed away, with each having created a will which left everything to one another and if both passed away, their estates were to be divided amongst their 6 children (4 daughters and 2 sons) as follows:
- $150,000 to each of the daughters; and,
- The residue/remaining portion to be divided equally between the two sons.
At the time of their passing, Mr. and Mrs. Litt owned a home in East Vancouver and a farm in Richmond, which had a combined total value in excess of $9,000,000.00. In other words, this amounted to 93.4% of the $9,000,000 estate going to the sons, and a mere 6.6% going to the daughters. This was clearly a very unequal distribution and the daughters were left with substantially less than their brothers, given the size of the estate.
The daughters argued that they were effectively disinherited, or left with very little, due in large part to their parents’ adherence to traditional values wherein the parents would traditionally leave the sons with the majority of the estate. The sons disputed this claim. Therefore, the daughters sought to have the will varied under s. 60 of the Wills, Estates and Succession Act which reads as follows:
Maintenance from estate
60 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.
The court noted, and even the parties agreed, that the parents’ wills failed to make adequate provision to satisfy the moral obligation owed by the parents to their daughters. Thus, the primary issue was how to vary the wills to accomplish a provision for the daughters that was adequate, just and equitable while also respecting the parents’ autonomy in making their wills.
After a review of the lengthy evidence at trial, the court found that while they were alive, Mr. and Mrs. Litt gave significantly larger gifts, especially cash, to their sons when compared to their daughters. In the court’s view, this served to increase the parents’ moral duty owed to their daughters to provide for them in the wills.
The court also found that traditional cultural values had some influence on the parents in how they treated their children while they were alive as well as in the wills. In short, the court found that there was never equality of treatment between the sons and the daughters. This favoured a variation of the will, but it did not necessarily favour an equal distribution amongst the children nor did the court find that any of the children could have reasonably expected such an equal distribution. With that said, the court did find that the daughters were entitled to reasonably expect to receive a greater share than what they received and that given the level of care that the daughters provided to their parents in their elder years, the parents were morally obligated to provide for the daughters in their wills.
After careful consideration, the court ruled that the wills need to be varied to achieve a fair distribution. As such, the court ruled that the wills were to be varied as follows:
- 15% to each of the four daughters, for a total of 60%; and
- 20% to each of the sons, for a total of 40%.
Simply applying the math, this resulted in an increase in entitlement of approximately $1,200,000 to each of the daughters, when compared to what they were originally entitled to under the will.
In these cases, what matters at the end of the day is that there is a fair distribution amongst spouses and children, and the law allows a person to seek a variation of the will to achieve that result. This in turn, can allow a person to overcome cultural norms or other reasons why a parent/spouse may have left a person out of their will.
So, if you think you have been disinherited or not been fairly accounted for in your spouse or parent’s will, please contact our firm to set up a free consultation to discuss this further. Note, it is important to contact counsel as soon as possible as there may be very strict and short deadlines within which a claim may be made.