If a will-maker dies leaving a will that does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may 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. What is “adequate, just and equitable” is determined in the specific circumstances, and in light of contemporary standards.
What place do the cultural traditions of the will-maker have in this consideration?
This issue arose in the recent case of Grewal v. Litt 2019 BCSC 1154. The will-maker left each of his four daughters $150,000. The residue of the estate (the total estate was valued at $9 million) was left to his two sons. The court had to determine the extent to which this unequal distribution resulted from the will-maker’s East Indian cultural traditions.
The court was not persuaded that the father considered himself bound by any traditions, or that the sole reason for the unequal distribution was adherence to those traditions. In fact, the court observed that to assume this was the case reflected stereotypical thinking about what “traditional” East Indian parents would do. However, traditional cultural values had some influence on the father (and the mother) in how they treated their children, including in their wills.
The will was varied, but the estate was not divided equally between the siblings. The court divided the estate 60 per cent in favour of the daughters and 40 per cent in favour of the sons. The daughters’ share was to be divided equally among the four of them. The sons’ share was to be divided equally between the two of them.
This can be compared to the facts in another case, Prakash v. Singh 2005 BCSC 1545 (which was cited in the Grewal case). In Prakash, the will-maker adhered to her beliefs in the native Indo-Fijian tradition that sons should inherit all of their parents’ estate to the exclusion of daughters except for token amounts. It was common ground that the will-maker viewed the tradition as binding upon her testamentary choices, or at least highly influential.
The court varied the will to increase the gifts to the daughters, but also did not divide the estate equally between the siblings. There was a rational and reasonable basis to favor the sons moderately regardless of her traditional values. While these circumstances by no means rise to the level of her predominant reason for her choices (her traditions) they are compelling enough to recognize a measure of legitimacy in her will.
B.C. courts will not permit unequal treatment of children on the basis of cultural traditions. However, they will not necessarily order that all siblings be treated equally.