Removal of an Executor/Trustee 2023

It is difficult to remove and substitute an alternate executor/trustee as a will-maker has the right to choose their executor and trustee.

That choice is entitled to deference and will only be interfered with if there is clear and cogent evidence to do so. In Parker v. Thompson (Trustee), 2014 BCSC 1916, Hinkson, C.J.S.C. stated:

In Haines v. Haines, 2012 ONSC 1816 at para. 10 as equally applicable to the removal of the trustee:

In Johnson v. Lanka, 2010 ONSC 4124, (2010), 103 O.R. (3d) 258 at para. 15, Pattillo J. summarized the principles that should guide the court’s discretion in deciding whether to remove estate trustees:

(a) the court will not lightly interfere with the testator’s choice of estate trustee;
(b) clear evidence of necessity is required;
(c) the court’s main consideration is the welfare of the beneficiaries; and
(d) the estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the trust.

See also Burke v. Burke, 2019 BCSC 383 at para. 29.

In addition, “not every actual or perceived conflict should lead to disqualification of an executor”. Each case turns on its own facts: Burke at para. 43.
s. 30 of the Trustee Act, R.S.B.C. 1996, c. 464 [Trustee Act] . Section 30 states:

Removal of trustees on application

S.30 Trustee Act provides:

A trustee or receiver appointed by any court may be removed and a trustee, trustees or receiver substituted in place of him or her, at any time on application to the court by any trust who is not under legal disability, with the consent and approval or a majority in interest and number of the trust beneficiaries who are also not under legal disability.

s. 31 of the Trustee Act provides the authority needed to replace the executor. Section 31 provides:

Power of court to appoint new trustees

31 If it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, it is lawful for the court to make an order appointing a new trustee or trustees, whether there is an existing trustee or not at the time of making the order, and either in substitution for or in addition to any existing trustees.

s. 158 and 159 of WESA also provides for the removal or passing over of a personal representative.

In Dahle Estate (Re), 2021 BCSC 718 at para. 20 there are four categories of conduct by an executor that will warrant their removal:

(1) endangerment of trust property;
(2) want of honesty;
(3) want of proper capacity to execute the duties; and
(4) want of reasonable fidelity.

The Admissibility of Hearsay Statements of a Deceased

It is a fact that estate litigation is rife with hearsay evidence, often “from” the deceased  and if certain criteria are met, such evidence is admissible.

In Peterson v. Welwood, 2018 BCSC 1379 at paras. 69-8o the court considered the admissibility of statements of the deceased:

In Gutierrez v. Gutierrez, 2015 BCSC 185 at para. 34 the court summarized the factors that can be considered when assessing the threshold reliability of a hearsay statement:

1) the presence or absence of a motive to lie

2) independent corroborative evidence that “goes to the trustworthiness of the statement” (Blackman at para. 55; Khelawon at para. 67; R. v. Couture, 2007 SCC 28 (S.C.C.) at para. 83);

3) timing of the statement relevant to the event, contemporaneity (Khelawon at para. 67);

4) the declarant’s mental capacity at the time of making the statement (Khelawon at para. 107);

5) solemnity of the occasion and whether the declarant’s statement was made “in circumstances that could arguably be akin to the taking of an oath where the importance of telling the truth and the consequences of making a false statement were properly emphasized” (Couture at para. 89; Khelawon at para. 86).

It is important to recognize that, as a preliminary threshold issue, the court must first find on a balance of probabilities that the statement was in fact made by a deceased declarant before it goes on to determine the treatment and weight of such evidence: Creutz v. Estate of Kristian Winther, 2007 BCSC 1463 at para. 99.

This assessment turns on the credibility of the witnesses who relate to the court the hearsay statements attributed to the deceased declarant: Halfpenny v. Holien (1997), 37 B.C.L.R. (3d) 186 (S.C.).

Binding Oral Contracts

While it is obviously more advantageous for the enforceability of a contract to be in writing, an oral contract can be just as valid as written contract if the necessary criteria are met.

In Oswald v. Start Up SRL, 2021 BCCA 352 at para. 34 , the court set out the legal test for the formation of a binding and enforceable contract:

(a) there must be an intention to contract;

(b) the essential terms must be agreed to [by] the parties;

(c) the essential terms must be sufficiently certain;

(d) whether the requirements of a binding contract are met must be determined from the perspective of an objective reasonable bystander, not the subjective intentions of the parties; and

(e) the determination is contextual and must take into account all material facts, including the communications between the parties and the conduct of the parties both before and after the agreement is made.

Part (d) of the Oswald test summarizes “what has been called the objective principle of contract formation”: Summers v. Sawyer, 2005 CanLII 30880, 2005 CarswellOnt 4001 (S.C.) at para. 15 [Summers]. In Summers, the court adopted the following passage from S. M. Waddams, The Law of Contracts, 5th ed. (Toronto: Canada Law Book, 2005) at 103, which elaborates on this principle:

The principle function of the law of contracts is to protect reasonable expectations engendered by promises.

Every definition of contract, whether based on agreement or on promise, includes a consensual element. But the test of whether a promise is made, or of whether assent is manifested to a bargain, does not and should not depend on an inquiry into the actual state of mind of the promisor, but on how the promisor’s conduct would strike a reasonable person in the position of the promisee.

The Summers court also cited the following passage from Smith v. Hughes (1871), L.R. 6 Q.B. 597 at 607, which states the objective principle of contract formation another way:

If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into a contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.
See also Hucul v. GN Ventures Ltd., 2022 BCSC 144 at para. 136.

In Summers, the court concluded there was an oral agreement between the three shareholders of a trucking company that was unable to start a business due to a lack of financing. As a result, the shareholders were each responsible for one-third of the company’s start-up expenses.
Reeves v. Russell, 82 R.P.R. (4th) 137, 2009 CanLII 11437 (Ont. S.C.) Is a good example of a case where a court found an enforceable oral agreement had been formed in the context of the formation of a business.

Committeeship Criteria ( Patients Property Act)

Mok v Wom 2022 BCCA 418 confirmed the criteria for appointing a committee of a mentally  infirmed patient’s estate and/or person.

 

An application for appointment of committee of the person invokes the parens patriae jurisdiction of the court. It is an inherently discretionary and fact specific assessment, governed by the overriding concern of who will serve the patient’s best interests.

Section 18(1) of the Patients Property Act ( PPA) states:

A committee must exercise the committee’s powers for the benefit of the patient and the patient’s family, having regard to the nature and value of the property of the patient and the circumstances and needs of the patient and the patient’s family.

Though the PPA does not provide a specific test to be used in determining who should be a committee, the courts have developed criteria to guide the exercise of discretion in making such an appointment. The court in Stewart (Re) summarized some of these considerations as follows at para. 29:

[29]      … However, cases have identified various considerations; see for example: Vranic (Re), 2007 BCSC 1949; Bowman (Re), 2009 BCSC 523; Palamarek (Re), 2011 BCSC 563; Re Matthews, 2013 BCSC 1045; and Sangha (Re), 2013 BCSC 1965. They include:

(a)  whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;

(b)  whether immediate family members are in agreement with the appointment;

(c)  whether there is any conflict between family members or between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient;

(d)  the level of previous involvement of the proposed committee with the patient, usually family members are preferred;

(e)  the level of understanding of the proposed committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;

(f)   whether the proposed committee will provide love and support to the patient;

(g)  whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the patient’s benefit;

(h)  whether a proposed committee has breached a fiduciary duty owed to the patient, or engaged in activity which diminishes confidence in that person’s abilities to properly handle the patient’s affairs;

(i)    who is best to advocate for the patient’s medical needs;

(j)    whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; and

(k)  whether a division of responsibilities such as between the patient’s estate and the patient’s person to different persons would serve the best interests of the patient, or would such a division be less than optimal for the patient.

A judge’s discretion in this assessment is broad; there is no formula that must be rigidly applied. A judge’s decision will often be exercised against a complex set of facts, and will typically have to weigh and balance multiple considerations, some of which may be in tension, and may support, standing alone, different outcomes. Moreover, these kinds of decisions often have to respond to exigent circumstances. Courts need to be able to act decisively to protect the interests of patients. There is a powerful imperative to achieve certainty and finality.

 

 

Loan or Gift From Mom/ Dad To Newly Weds

I previously wrote on the “bank of mom and dad” and how they had an almost %100 failed collection rate when the wedding “gift” suddenly turns into a loan after the  marriage fails.

 

Whether the advancement of funds from one party to another is a loan or a gift is a common theme in estate litigation and more so when it involves families and money.

 

The courts have more frequently than not found that the out of luck parents intended a gift when the monies were advanced and not a loan.

 

Typically since it is family, the details are not documented and signed . The parents attitude is often that it is a gift so long s the marriage holds and if not, we want our money back.

 

In Zucker v Zucker 2022 BCSC 2025 the parents did the usual thing of advancing monies to a child and his spouse for them to buy a home. There was a mortgage and a signed promissory note.

The child of the parents agreed with them at trial that the monies were advanced as a loan but the spouse argued that it was a gift.

Based on some unique evidence the court held that the parents intended a loan.

 

At para. 43, the court noted that in Kuo v. Chu, 2009 BCCA 405 (B.C. C.A.) at para. 9, the Court of Appeal adopted the following factors from Locke v. Locke, 2000 BCSC 1300 (B.C. S.C.), as applicable to the question of whether a loan or a gift was intended:

(a) Whether there were any contemporaneous documents evidencing a loan;

(b) Whether the manner for repayment is specified;

(c) Whether there is security held for the loan;

(d) Whether there are advances to one child and not others, or advances of unequal amounts to various children;

(e) Whether there has been any demand for payment before the separation of the parties;

(f) Whether there has been any partial repayment; and,

(g) Whether there was any expectation, or likelihood, of repayment.
The court firstly attempted to determine the actual intention of the transferors on the balance of probabilities.
The court starts with the presumption of a resulting trust, and weighs the evidence in an attempt to ascertain the transferors actual intention .
The presumption of resulting trust only applies where there is insufficient evidence to rebut it on a balance of probabilities ( Pecore v Pecore 2007 SCC 44.
Since the inquiry focuses on the intention of the transferors the state of knowledge of the opposing spouse about the transaction is not determinative ( Tobias v Tobias 2016 BCSC 125 at 42)
The court seized on the unusual fact that the defendants at one point transferred the title to one of the parents finding that such an act was persuasive reliable circumstantial evidence that the plaintiffs did not intend the monies to be a gift.
The defendants also partially repaid the monies and a partial repayment can be evidence that a loan was intended.  Kuo v Cho 2009 BCCA 405 at para.9
The court found that the defendants were liable to the plaintiffs on the basis of a resulting trust.

The Law of Set -Off

Blacks Law dictionary defines set-off as a counterclaim demand which a defendant holds against the plaintiff, arising out of the transaction extrinsic of the plaintiff’s cause of action. The defendant seeks to cancel the amount due from him or to recover a mountain in excess of the plaintiff’s claim against him.

Coba Industries Ltd. v. Millie’s Holdings (Canada) Ltd., 1985 CanLII 144 correctly summarizes the applicable principles for a valid claim of set-off:

1. The party relying on a set-off must show some equitable ground for being protected against his adversary’s demands.
2. The equitable ground must go to the very root of the plaintiff’s claim before a set-off will be allowed.
3. A cross-claim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the cross-claim.
4. The plaintiff’s claim and the cross-claim need not arise out of the same contract.
5. Unliquidated claims are on the same footing as liquidated claims.
[citations omitted]

Similarly the Court of appeal in Wilson v. Fotsch, 2010 BCCA 22 described law of equitable set

off as being available provided that there is a relationship between the cross-obligations such that

it would be unfair or inequitable to permit one to proceed without taking the opposing claim into account.

The requirements for a claim of equitable set-off are as follows:

1. The party relying on a set-off must show some equitable ground for being protected against his adversary’s demands;

2. The equitable ground must go to the very root of the plaintiff’s claim before a set-off will be allowed;

3. A cross-claim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the cross-claim;

4. The plaintiff’s claim and the cross-claim need not arise out of the same contract; and

5. Unliquidated claims are on the same footing as liquidated claims.

Breach of Confidentiality Agreements

A breach of a confidentiality agreement may occasionally arise in estate litigation, particularly on behalf of the executor.

In order to found an action for breach of a confidentiality clause, the information in question must have the necessary quality of confidence.

A list of the factors to be considered confidential quality  is found in Foreman v. Chambers et al, 2006 BCSC 1244 at para. 61, citing Pharand Ski Corp. v. Alberta (1991), 80 Alta. L.R. (2d) 216 (Q.B.):

a) the extent to which the information is known outside the owner’s business;
b) the extent to which it is known by employees and other involved in the owner’s business;
c) the extent of measures taken by the owner to guard the secrecy of the information;
d) the value of the information to the owner and his competitors;
e) the amount of money or effort expended by the owner in developing the information; and
f) the ease or difficulty with which the information could be properly acquired or duplicated by others by their independent endeavours.

The mere assembly of publicly available facts by itself does not render the information confidential. Rather, the information must be difficult to assemble, assembled in an innovative manner or analysed in an innovative manner: Foreman at para. 65.

Chattel or Fixture?

Executors occasionally when selling estate assets run into the “age-old” issue of whether the asset a chattel or a fixture to the land.

The legal test for determining whether an item is a fixture or chattel is set out in the oft followed 1902 decision of Stack v. T. Eaton Co., [1902] 4 O.L.R. 335 at 338, which was followed by our Court of Appeal in La Salle Recreations Ltd. v. Canadian Camdex Investments Ltd., (1969), 4 D.L.R.(3d) 549 (BC CA) [La Salle] at para. 16:

A study of these and other authorities has led me to the conclusion that the principles to be applied are stated accurately by Meredith, C.J., speaking for a Divisional Court in Stack v. T. Eaton Co., [1902] 4 O.L.R. 335 at p. 338 as follows:

I take it to be settled law

(1)That articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as shew that they were intended to be part of the land.

(2)That articles affixed to the land even slightly are to be considered part of the land unless the circumstances are such as to shew that they were intended to continue chattels.

(3)That the circumstances necessary to be shewn to alter the primâ facie character of the articles are circumstances which shew the degree of annexation and object of such annexation, which are patent to all to see.

(4)That the intention of the person affixing the article to the soil is material only so far as it can be presumed from the degree and object of the annexation.

Haggert v. Town of Brampton (1897), 28 S.C.R. 174, was a dispute between mortgagor and mortgagee where the mortgage charged [p. 179] “‘… all the real estate of them the mortgagors, including all the machinery there was or might thereafter be annexed to the freehold, and which should be known in law as part of the freehold’”. Delivering the judgment of the Supreme Court of Canada King, J., after referring to certain authorities, commented on the object of annexation as follows at p. 182:

In passing upon the object of the annexation, the purposes to which the premises are applied may be regarded; and if the object of setting up the articles is to enhance the value of the premises or improve its usefulness for the purposes for which it is used, and if they are affixed to the freehold even in a slight way, but such as is appropriate to the use of the articles, and showing an intention not of occasional but of permanent affixing, then, both as to the degree of annexation and as to the object of it, it may very well be concluded that the articles are become part of the realty, at least in questions as between mortgagor and mortgagee.

The court in La Salle went on to analyze whether, regardless of the slight degree of annexation of the carpets in question, the goods were affixed to the building for the better use of the goods or for the better use of the building as a building. I quote paras. 23 and 24 of La Salle:

[23] Turning to the object of annexation, the question is whether the goods were affixed to the building, though slightly, for the better use of the goods as goods, or for the better use of the building as a hotel building. Counsel for the respondent pointed out quite correctly, that the question is not whether carpeting is useful or necessary to a hotel, but whether the annexation of the carpets was for the better use and enjoyment of the carpets as such or for the better use of the building as a hotel building. The factors in this case, in addition to others already mentioned, bearing on this question appear to me to be:

1. The unfinished plywood flooring was entirely unsuitable and could not be expected to be used as a floor in a hotel with the character of the Villa Motor Hotel.
2. The under matting and carpeting, if left resting on the plywood by their own weight, would not provide proper floors in such a hotel for reasons of both appearance and utility.
3. The annexation was reasonably required for the completion of the floors as such, having regard to the character and intended use of the areas involved.
4. The evidence shows that in comparable hotels carpeting is quite commonly replaced at intervals of three to five years.
5. It is also established that a ready market exists for used carpeting after its removal.
[24] Weighing all these circumstances, I am of the opinion that the object of the annexation was the better and more effectual use of the building as a hotel and not the better use of the goods as goods. It follows that in my opinion, the carpeting and accessories were annexed to the land in such a manner and under such circumstances as to constitute fixtures within the meaning of s. 12 of the Act.

Royal Bank of Canada v. Maple Ridge Farmers Market Ltd., 1995 CanLII 896 (BC SC) [RBC] at para. 12, in which Mr. Justice Maczko articulated six rules to aid in the application of La Salle:

1) Any item which is unattached to the property, except by its own weight, and can be removed without damage or alterations to the fixtures or land that will need repair, is a chattel.

2) Any item which is plugged in and can be removed without any damage or alteration is a chattel.

3) Any item which is attached even minimally (i.e. it cannot simply be unplugged) is a fixture.

4) If a piece of equipment is attached to a structure, a part of which could be removed but which would be useless without the attached part, then the entire piece of equipment is a fixture. In other words, the item will be a fixture if it losses its essential character because it is of no use unless attached to a permanent and substantial improvement to the premises of which it formed part. The converse is also true. If an item can be detached without damage or alteration, and if the item retains its essential character without the attached part, then it will be a chattel.

5) Where an item is determined to be a fixture, it may nevertheless be removed if it can be shown that it is a tenant’s fixture. A tenant’s fixture may be removed from the premises during the currency of the tenancy provided that the tenant leaves the premises in exactly the same condition as he or she received them.
6) In very exceptional circumstances not covered by these rules the court should have resort to the purpose test. For example, a mobile home may be resting on the land by its own weight but it may be clearly established that it was intended to be a fixture. These circumstances should only arise rarely and in relation to very large or expensive items.

When Did Spouses Separate

Sometimes it is necessary in estate litigation to determine when spouses ceased to be in a spousal/marriage like relationship.

The case of CC v SPR 2022 BCSC 1817 reviewed the law relating to the date when parties have separated.

Spouses can separate even if they continue to inhabit the same dwelling. The seminal case of Rushton v. Rushton (1968), 2 D.L.R. (3d) 25, 1968 CanLII 606 (B.C.S.C.) articulated this principle as follows (at 27):

The words “separate and apart” are disjunctive. They mean, in my view, that there must be a withdrawal from the matrimonial obligation with the intent of destroying the matrimonial consortium, as well as physical separation. The two conditions must be met. I hold that they are met here. The mere fact that the parties are under one roof does not mean that they are not living separate and apart within the meaning of the Act. There can be, and I hold that here there has been, a physical separation within the one suite of rooms.
In Nearing v. Sauer, 2015 BCSC 58 [Nearing], the court further clarified that a disagreement between the parties as to their separation does not preclude a judicial finding of separation. Instead, where there is no meeting of the minds on the intention to separate, courts will generally examine whether one party intended to live separate and apart and took “action consistent with that intention”: at para. 54. The court explained that, in practice:

[56] … when the parties dispute the date of separation, the court’s analysis focuses on the generally accepted characteristics of marriage including the intention to remain married, having sexual involvement, carrying on activities in public, sharing financial resources and sharing significant family events … The court will also consider a range of other factors, including a clear statement by one of the parties of his or her desire to terminate the relationship. Sexual involvement, or lack thereof, is not conclusive …
Building on Nearing, the court in H.S.S. v. S.H.D., 2016 BCSC 1300, rev’d on other grounds 2018 BCCA 199 [H.S.S.], reframed the approach to dates of separation as follows:
[40] … The legal framework for determining that spouses have lived separate and apart requires that the Court find, first, an intention of one spouse to repudiate or end the marital relationship and, second, action consistent with that intention. The parties disagree on whether that action must include an unambiguous verbal expression of his or her settled intention.

[42] … The Court’s task is to assess objectively, on the totality of the evidence, whether one spouse held a settled intention to separate and communicated that intention through his or her conduct to the other spouse. An express statement is only one of the factors for consideration in what is necessarily a contextual analysis.
The framework articulated in H.S.S. largely mirrors the conclusions of the court in Charen v. Charen, [2018] B.C.J. No. 3152:
[45] In S.A.H. v. I.B.L., 2018 BCSC 544 at paras. 49-54, I reviewed the various authorities respecting the determination of the date of separation. Based on my reading of the authorities, I concluded at para. 55 that this was a fact driven exercise which could be aided by answering the following questions:
1. Did at least one spouse have the intention to separate?
2. Was the intention to separate communicated to the other spouse?
3. Was the intention to separate acted upon? In other words, using generally accepted characteristics of marriage, did one or both spouses take action that is consistent with the separation, such as:
a. changing how they behaved with each other in public; and
b. changing how they behaved with each other in private.
The authorities caution that while the parties’ subjective intentions are relevant, they are not necessarily determinative: O.C. v. K.C., 2016 BCSC 72 at para. 18.

In Bartch at para. 94, the court helpfully summarized a non-exhaustive list of factors to be considered in determining spousal separation, referencing Coupar v. Roh, 2014 BCSC 1392:
• the lack of changes to distinguish the relationship before moving into separate residences and after moving into separate residences: para. 73;
• regular interaction between the parties including occasional dining out or attending events together: para. 74;
• continuing to perform domestic services, cooking, cleaning and laundry: para. 83;
• continuing to attend social functions together: para. 84;
• making gifts to one another: para. 85;
• taking vacations together: para. 86;
• neither party becoming involved in another relationship: para. 87;
• continuing to share the common use of assets: para. 88; and
• whether one party told the other party of the intention to permanently end the relationship: para. 90.

South East Asian Women and the Wills Variation( S. 60 WESA)

This article was originally posted on the National Post. ( See the reasons for judgement at Grewal v Litt 2019 BCSC 1154)

A wills variation claim involving four Indo-Canadian daughters was varied from  $150,000 each to %60 of the estate — the two sons were slated to collect $4.2 million

Nahar and Nihal Litt were farmers from India who came to B.C. and achieved the Canadian dream, building a future for their six children and accumulating a family fortune worth $9 million.

When the couple died in 2016, their will stipulated that their four daughters — Jasbinder Grewal, Mohinder Litt-Grewal, Amarjit Litt, and Inderjit Sidhu — receive $150,000 each, collectively less than seven per cent of the estate, while sons Terry Litt and Kasar Litt receive 93 per cent, or $4.2 million each.

Last week, the will was overturned in B.C. Supreme Court, a case that is notable because of the glaring disparity between the amounts given to the daughters compared to sons, and the overall value of the estate, said Trevor Todd, the plaintiffs’ lawyer.

Nahar and Nihal Litt were farmers from India who came to B.C. and achieved the Canadian dream, building a future for their six children and accumulating a family fortune worth $9 million.

When the couple died in 2016, their will stipulated that their four daughters — Jasbinder Grewal, Mohinder Litt-Grewal, Amarjit Litt, and Inderjit Sidhu — receive $150,000 each, collectively less than seven per cent of the estate, while sons Terry Litt and Kasar Litt receive 93 per cent, or $4.2 million each.

Last week, the will was overturned in B.C. Supreme Court, a case that is notable because of the glaring disparity between the amounts given to the daughters compared to sons, and the overall value of the estate, said Trevor Todd, the plaintiffs’ lawyer.

“All of my sisters and I are happy with the judge’s findings,” said Amar Litt.

She and her sisters challenged the will on the grounds they were discriminated against based on their parents’ traditional Indo-Canadian values that favoured sons over daughters — a belief they argued falls short of the moral standards of Canadian society.

The Litts arrived in B.C. in 1964. At the time, the children ranged in age from three to 14.

Father Nahar worked at a sawmill. The family eventually purchased residential properties and farmland in Vancouver, Richmond and Abbotsford. At the time of the Litts’ deaths, the bulk of their estate came from two properties, the family house in Vancouver and a 73-acre property in Richmond.

The Litt family farm on Cambie Road in Richmond. The property has since been sold. (Submitted photo: Amar Litt) PNG

Throughout their childhood, the sisters felt they were considered less valuable, especially by their mother, because of their gender, court heard during the 15-day trial.

“The sting and the hurt of those memories were apparent as they gave their evidence at trial,” noted Justice Elaine Adair in her reasons for judgment.

“Most of our lives we had not been treated fairly,” said Amar Litt. “My brothers received all the praise because they were boys. We had to fight a lot harder.”

The sons also received “significantly more” gifts and benefits during their parents’ lifetimes than any of the sisters, said the judgement.

All the siblings worked on the farm, but the girls testified they were also responsible for household chores.

With the exception of one brother, the unmarried children were expected to plow their wages back to the farming operations. The exception was Kasar Litt, whose wage was held back even after he was married.

One sister, Inderjit, was working outside the farm, but was expected to make her employment income available to the family business, said the judgment.

The daughters argued their work and wage sacrifice were the “backbone of the farm operations,” it said.

“Throughout our childhood, teen years, and young adult lives, we worked on that farm alongside our brothers,” said Amar Litt. “We helped build our parents’ estate.”

When the elder Litts’ health deteriorated, it was the daughters, particularly the two older sisters, who took care of their parents.

Learning the contents of the will was disheartening, said Amar Litt. “We were anticipating that my parents would recognize us at this point, but it ended up we weren’t. It was very difficult and emotionally painful.”

Their brother Terry, who was executor of the will, testified that between 2006 and 2012, he tried to convince his parents to change the will. His father was open to the idea, but his mother was not.

Both brothers agreed their parents failed to meet their “moral obligations” to their daughters, but the parties could not agree on how the estate was to be divided, despite mediation.

The judge ruled an increase to the daughters’ share was warranted based on factors including the gifts and benefits the sons had received, the influence of outdated cultural values on the parents, and the daughters’ contribution to their parents’ care.

Adair ruled that the daughters be granted $1.35 million and the sons $1.8 million each.

“The judge had to take into consideration what the will said,” said Litt. “We are still able to honour our parents wishes that the sons get more, but there’s more fairness now.”

The B.C. Wills Variation Act allows judges to change a will to make sure it is “adequate, just and equitable” to the testator’s spouse and children.

B.C. is the only province in Canada to have this legislation, adopting it from New Zealand in 1920.

It can be a controversial legislation, said Todd, but argues it doesn’t mean British Columbians don’t have a say in what happens to their assets upon death. Parents can still disinherit a child, for example, but there has to be valid and rational reasons for doing so.

Todd said that over the course of his 45-year practice, he has had met many Indo-Canadian women consult with him over wills they believe to be unfair. But none proceeded with a claim.

“The social pressures, family pressures, and pressure from their community at large prevented some of them from going ahead,” he said.

Contesting her parents’ will was not easy, said Amar Litt, especially for her two older sisters.

“We did it because it was the right thing to do,” she said, adding she hopes their case will “inspire other women in the same situation to stand up for themselves.”