.svg)
The recent decision of Grewal v. Litt, 2019 BCSC 1154 looks at the factors the Court will consider when deciding to vary a will that treats independent adult children unequally. The potential influence of cultural traditions and customs on the parents’ decision-making was a central issue in this matter.
In this case, Nahar and Nihal Litt passed away in February and March of 2016 respectively, leaving six adult children and an estate worth approximately $9 million dollars. The family’s wealth was accumulated through real estate; particularly farmland. The Litt’s mirror wills made in December 1993 left $150,000 be each of their four daughters with the residue of their estate to be divided equally between their two sons. The result was that the daughters, collectively, received $600,000 or 6.6% of their parents’ estate whereas the sons together received $8.4 million dollars representing 93.4% of the estate.
The four daughters applied to vary their parents’ wills and sought an equal distribution of the estate among all six children. While all parties to the proceedings agreed that their parents failed to meet their moral obligations to their daughters and that the wills should be varied, the sons were not agreeable to an equal division among all six children.
In support of their claim, the daughters pointed to traditions and customs within the Sikh culture that favour sons and, as a result, discriminate against daughters. They claimed that their parents felt bound to follow these customs, which were not in keeping with contemporary standards and resulted in the unequal division of their estate. They also gave evidence relating to their contributions to the farmland that made up a large part of the estate; their relationships with their parents; and the care they provided to their parents at the end of their lives.
In deciding that the daughters’ collective share of the parents’ estate should be increased from 6.6% to 60%, leaving the remaining 40% to be shared between the sons, the Court considered: gifts and benefits made to the children during the parents’ lifetime; the parents’ reasons for the distribution; the reasonably-held expectations of the children; the children’s contribution to the estate; the children’s relationship with their parents and contribution to their care; and the children’s personal circumstances. The Court also looked at the size of the estate, which was sufficient to provide for all of the independent adult children.
Throughout their lives, all children had assisted with and worked on the farm to varying degrees. The sons’ use of the farmland and receipt of revenue was considered both as a benefit received by the sons, which heightened the parents’ moral obligation to their daughters, and evidence in support of one son’s reasonable belief that he would receive a greater share of the estate. There were no circumstances that the Court found would negate the parents’ moral obligation to their daughters. They did consider a period of estrangement between the parents and one daughter, but as the parties had reconciled prior to the parents’ deaths, this was not a circumstance that would negate the parents’ moral obligation to that daughter.
In considering whether the parents were “bound” by culture and tradition, the Court accepted that the sons and daughters were treated unequally during their lifetime and by the wills, and that culture and tradition may have influenced the parents’ decisions with respect to distribution of their estate. The Court did not accept that this influence amounted to the parents believing they were bound with respect to decisions relating to their estate. The Court pointed to the fact that despite being estranged from her parents at the time the wills were made, one daughter was still treated in an equal manner as the other daughters.
This decision highlights that variation of a will to create an adequate, just, and equitable division will not always result in an equal division. The Court’s role is not to re-write the will, but only to vary it as necessary to create an adequate, just, and equitable result. In upholding the parents’ testamentary autonomy, the court chose to give equal portions of the estate to the daughters and equal portions to the sons, as opposed to equal division among all six children.
