Equal or Unequal inheritance is on the minds of many people creating Wills in British Columbia. A parent will maker might have various reasons for wanting to give more to one child over another child.
The Courts in British Columbia recognize and respect the autonomy of a will maker to gift their property as they see fit. Accordingly, it is not usual for siblings to receive different shares of their parent’s estate. It appears that, while you do not have to give to all your children equally, you need to justify this and even with that justification, you may want to be careful just how large the differences are.
- If you are an adult child and do not know how much you should receive because your parent didn’t create a will, read this.
- If you were completely left out of a will, read this.
Can I give more than 50% of my property to one child in my will?
A will-maker may want to give the majority of their property to one child and should provide their reasons for doing so in their will. However, in these situations, the other child / children may challenge their parent’s will in court and when the parent dies. This essentially means they will ask the Court to change the will and give them a higher portion of the estate. Chances or success or failure depend on:
- how large the difference is between how much the siblings have received;
- the parent’s reasons for providing unequal inheritance to children;
- Tax complications and trust planning issues effecting the estate
The BC Court’s Approach to Unequal Inheritance to Siblings
The Court of Appeal recently addressed this situation in Tom v Tang, 2023 BCCA 221, in which:
- Ms. Tom gave 2 of her children about 85% of her estate and the remaining 3 children about 5% each,
- The 3 children that received less challenged the will,
- Tom’s first will gave equally to her 5 children, however shortly before her passing, she changed her will to give 2 of her children more because they provided primary care to her in her last three years of life,
- Tom’s estate was worth approximately $2.3 million with the primary asset being a home in Vancouver worth $1.7 million at the time of drafting her will,
- In her will, Mrs. Tom gave the Vancouver house equally to the 2 children that cared for her in her last few years.
The Court of Appeal determined that the 2 children that provided care to Mrs. Tom’s would receive 30% each and the remaining 3 children would equally share the remaining 40% of the estate.
The Legal Test for Challenging Unequal Inheritance
The BC Court of Appeal has confirmed that whether one is able to challenge a will depends on what we call the standard is of a judicious parent – specifically a will-maker’s moral duty to adult children from the viewpoint of a reasonable will-maker. However, a will-maker’s moral duty may be negated where there is just cause.
What if I explain in my will why I am giving the majority of my estate to one child?
Explanation definitely helps but is not a total protection. The test is what a reasonable will maker would do in such situations given the amount of the state and the reasons why one child should receive more than the other. it is a case by case analysis which estate litigation lawyers can help with.
In the Tom case, Mrs. Tom did explain her reasons in a letter, however the Court of Appeal still found the will needed to be changed such that the 2 children that cared for Mrs. Tom should not receive as much as 85% of her estate.
Mrs. Tom met with a lawyer to change her will and she explained that she wanted to leave the 2 children that cared for her the Vancouver house as a reward for caring for her. At the time, the lawyer cautioned her against doing so given that such a disproportionate distribution could result in a successful wills variation claim.
All of Mrs. Tom’s children accepted the letter that she had written and agreed that the 2 children ought to receive preferential treatment but they disputed the magnitude of the treatment—this is what led to successful will-variation claim.
What Should I Do if I Want to Challenge My Parent’s Will?
Follow these steps for the most time and cost effective outcomes:
- understand your rights and chances of success – it is best to have a consultation with a estate litigation lawyer to understand the strengths and weaknesses of your case, in addition to options you may have to resolve your dispute
- try to mediate or settle the case – you can have direct conversations with your siblings, use a neutral 3rd party to mediate, or use an estate mediator who usually is certified and experience in estate laws;
- If there are no agreements, you can apply to court and dispute the parent’s Will.
Please note there are time limitations for challenging a will. There are various rules and procedures to follow and the process may be daunting.
It is best to speak with an estate litigation lawyer or an estate mediator to better understand your options and the path to follow to obtain your fair share of inheritance.