In Grewal v Litt 2019 BCSC 1154 four Indo Canadian women in a wills variation action were substantially awarded almost 10 times the amount bequeathed to them under their parents wills.
disinherited.com were counsel for the daughters.
In 1993 their parents had executed mirror wills, which left the sum of $150,000 cash to each of four daughters with the residue to be divided equally between two sons.
At the date of trial the estate was valued at approximately $9.3 million.
The four daughters bequests amounted to slightly over 6% of the value of the estate, and the sons approximately 93 ½% .
The court substantially increased their inheritance to 60% of the estate, with the remaining 40% divided equally between the two sons.
There was extensive evidence of how all of the six children worked on various farms owned by the family very hard and “as a unit.” The daughters also substantially provided most of the care for their elderly and infirmed parents for the last several years of their lives. It was common ground that their mother treated the daughters in effect, cruelly.
The daughters were raised very strictly, while the sons had far more freedom.
The parents also signed wills in India, which left approximately $200,000 in assets there solely to the sons. The sons were also given far more benefits than the daughters during the lifetime of their parents, with one son and his family receiving over 20 years free rent, while the other son received rental income from property totaling in excess of $300,000, as well as some free rent. The court found that gifts to one son made during the parents lifetimes were four times the amount of gifts that the sisters collectively received.
One of the sons counterclaimed for unjust enrichment as a result of alleged improvements he made to a farm. He asserted that his improvements should be valued in excess of $400,000, but the court dismissed that claim on the basis that he and his family received a number of benefits from the parents that should be accounted for in the juristic reason aspect of a claim of unjust enrichment.
Wills Variation Claim
The court referred to Dunsdon v Dunsdon 2012 BCSC 1274 as a framework for considering a testator’s moral duty to an independent adult child, at paragraphs 134 – 135:
“In the post Tataryn v Tataryn Estate (1994) 2 SCR 807, the leading case on wills variation, the following considerations were accepted as informing the existence and strength of the testator’s moral duty to independent children:
- relationship between the testator, and claimant, including abandonment, neglect and estrangement by one or the other;
- size of the estate;
- contributions by the claimant;
- standard of living of the testator, and claimant; gifts and benefits made by the testator outside the will;
- testator’s reasons for disinheriting;
- financial need another personal circumstances, including disability, of the claimant;
- misconduct or poor character of the claimant;
- competing claimants and other beneficiaries.
These considerations tend to overlap and are not approached in isolation is independent, airtight categories.
There is no legal obligation to divide an estate equally amongst adult children. Equal the treatment is not always required to make adequate, fair and equitable provision. McBride v Voth 2010 BC SC 443 at paragraph 134.
The judicial approach to variation of a will under section 60 of WESA (the wills variation provision) is not to start with a blank slate and then write a will designed to right all of the perceived wrongs of the past.
Instead judicial interference with testamentary autonomy should be minimized. Chan v . Lee estate 2004 BCCA 644 at paragraph 43 .
The court may consider the gifts outside the will to determine whether the will maker has fulfilled his or her obligations. Depending on the circumstances, a will maker’s moral duty may be diminished or negated entirely where he or she is made inter vivos gifts to a claimant .McBride at paragraph 133.
There was no dispute by the defendants that the will should be varied in favor of the four adult daughters, and the trial centered on how much the will should be very to accomplish provisions for the daughters that are adequate, just and equitable, and the extent which the parents testamentary autonomy should be respected.
The court found that the gifts to the sons were significantly more than to the daughters, and intensified the moral duty owed by the parents to the daughters.
The daughters had argued that they were primarily disenfranchised from the amount left to the sons, by reason of Indo Canadian tradition to in effect provide dowries to the daughters, and leave the land and substantial estate to the sons.
While the court did not wholly adopt this argument, the court did refer to the decision of Prakash and Singh v Singh 2006 BCSC 1545 , where the three daughters receive $10,000 each, and the residue was divided equally between the two sons.
In that case, the daughters received about 1.3% of the estate and the sun shares were about 48% each. At trial, it was common ground that the main reason for the disparity in the gifts was the testator’s belief in her native Indo tradition that the sons should inherit all of the parent’s estate to the exclusion of the daughters except for token amounts. It was also common ground in that decision, that the testator reviewed the tradition as binding upon her testamentary choices, or at least highly influential.
At paragraphs 57 – 59 of the Prakash decision, the court stated as follows:
57. In terms of moral obligations, Mrs. Singh chose an option that fell short, that is common, according to the moral norms of our Canadian society. A variation is needed.
58. 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 where 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.
59. A tradition of leaving the lion’s share to the sons may work agreeably in other societies with other value systems that legitimize it, but in our society, such a disparity has no legitimate context. It is bound to be unfair, and it runs afoul of the statute of this province.
In Prakash, the court did not leave the daughters an equal distribution, but did award them 60% of the estate, with the residue divided equally between the two sons.
Evidence was led in the Grewal v Litt decision that supported the plaintiff’s contention that the parent’s reasons for treating the daughters and the wills were based upon East Indian traditions and custom.
One of the sons agreed in his examination for discovery, for example, that the parents adhered to the tradition of the daughters being married off and the sons inheriting the estate. An independent witness also testified that based on his conversations with the male parent, that he planned to leave his estate in accordance with the traditional East Indian customs.
The court in Litt was not persuaded in making their wills, that the parents considered themselves bound by East Indian culture, traditions, and the court rejected the argument that the parent’s reasons for dividing the estate in the way reflected in the wills were driven solely by adherence to those traditions.
The court found that the parents reasons for dividing the estate in the way reflected in the wills were more complicated, but that the traditional cultural values had some influence on the parents and how they treated the siblings, both when the parents were alive and in their wills.
Accordingly, the court varied the will to provide that each of the four daughters receive 15% for her own use absolutely, and that each son receive 20% for his own use absolutely.