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South Asian Unfair Wills Variation

South Asian Unfair Wills Variation cases involve a special cultural sensitivity often from a lawyer familiar with or who is an actual member of the South Asian community. In today’s blog, South Asian family law and estate litigation lawyer Joty Sandhu, reviews a recent BC Supreme Court case where South Asian traditions did not trump the requirement for a BC Will to adequately provide for daughters of their deceased parent. MacLean Law’s estate litigation department is culturally diverse and has the largest Mandarin, Punjabi, and Cantonese fluent estate dispute team with 6 offices across BC and in Calgary to help you.

A new 2019 South Asian Unfair Wills Variation case builds on a past BC Unfair Wills variation decision and notes that many cultures including, for example, South Asians and Chinese, commonly favour sons over daughters both in during the life of family members and on the death of a parent. This South Asian Unfair Wills Variation case is important for other cultures such as our Mandarin and Cantonese Chinese speaking family law and estate dispute clients.

South Asian Unfair Wills Variation Lawyers 1 877 602 9900

It is not uncommon for Indo-Canadian women to forfeit their rights to their parent’s estate even when the law is in their favor. In India, a dowry is customarily provided to daughters in substitute for property rights in their ancestral lands. Although this is an outdated traditional belief, many Indo-Canadians still adhere to these East Indian customs, and it is particularly evident in their estate planning when a substantially larger portion is inexplicably left to their sons compared to their daughters. Unfortunately, many Indo-Canadian women, although born and raised in Canada, continue to surrender their rights and choose not to pursue a claim for a share in their deceased parents’ estate due to social pressures and the fear of breaking family ties.

South Asian Unfair Wills Variation lawyer Joty Sandhu notes The BC Supreme Court, in its recent decision Grewal v. Litt, 2019 BCSC 1154, confirms that these traditions fall short of the moral standards in Canadian Society, which provide for equal treatment of men and women. This case further reinforces equality rights and will hopefully bolster a cultural acceptance of women’s inheritance rights within Indo-Canadian communities going forward. The case garnered considerable publicity and CBC did a story on it.

South Asian Unfair Wills Variation Case Facts

In the Grewal v. Litt, the deceased parents executed “mirror wills”, which left everything to one another. On the passing of the last parent, each daughter would receive $150,000 from their collective estate and the residue would be divided equally between the sons. Based on the net value of the estate, which was approximated between $9 – 9.3 million, the 4 daughters would receive approximately 6.6% collectively under the will, and the 2 sons would receive 93.4% of the estate.

The daughters commenced a South Asian Unfair Wills Variation action and argued that they were discriminated against by their parents and effectively disinherited, based on their parents’ adherence to traditional Sikh culture and values, which favored sons over daughters. They argued that such traditional and cultural beliefs are unacceptable, and since there were no valid or rational reasons to substantially disinherit them, the parents’ estate should be divided equally among all siblings.

WESA Legislation and Leading Case Law 1 877 602 9900

In Canada, each province has its own legislation concerning wills and estates. In most provinces, only a spouse and dependent children can contest a will that has disinherited them. However, British Columbia is unique in that our Wills, Estates and Succession Act also allows independent adult children to make a claim against their deceased parents’ estate. Although there are no legal obligations to provide for them in a will, there is a moral obligation to do so if there are sufficient assets in the estate.

Section 60 of the Wills, Estates, and Succession Act provides the court with authority to vary a will. It states:

Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, 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.

The leading case on South Asian unfair wills variation in British Columbia is Tataryn v. Tataryn, [1994] 2 S.C.R. 807. The court in Tataryn outlined:

  • First, a court must ask itself whether the will makes adequate provision; and
  • If not, the court must order what is “adequate, just and equitable”. What is “adequate, just and equitable” is determined in the specific circumstances and in light of contemporary standards.  Moreover, this consideration is balanced against the principle of testamentary autonomy.

At paras. 134 and 135, the court in Dunsdon v. Dunsdon, 2012 BCSC 1274 provides the following helpful framework for considering a testator’s moral duty to independent adult children:

[134] In the post-Tataryn era, the following considerations have been accepted as informing the existence and strength of a 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;

• reasonably held expectations of 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 and other personal circumstances, including disability, of the claimant;

• misconduct or poor character of the claimant;

• competing claimants and other beneficiaries:

[Citations omitted.]

[135] These considerations tend to overlap and are not approached in isolation as independent, air-tight categories.

South Asian Unfair Wills Variation – Cultural Collision

In Grewal v. Litt, there was no dispute that a moral obligation was owed by the parents to their daughters and that the will failed to make adequate provision to satisfy that obligation. There was, therefore, no dispute that the will should be varied. The main issue, in this case, was how the wills should be varied to accomplish provision for the daughters that was adequate, just and equitable, and the extent to which the parents’ testamentary autonomy should be respected.

The daughters argued that there should be no weight given to the parents’ testamentary autonomy as their reasons were based on traditional customs and practices which resulted in unacceptable discrimination against daughters in favour of sons. They argued that this was ultimately contrary to public policy. In support of this argument, they cited a similar unfair wills variation case, Prakash and Singh v. Singh et al, 2006 BCSC 1545, in which the parents left $10,000 (1.3% of the estate) to each of the 3 daughters, and $366,240 (48% of the estate) to each of the 2 sons. In ordering a variation of the will, the court made the following comments respecting moral obligations at paras. 57-59:

[57] In terms of moral obligations, Mrs. Singh chose an option that fell short, that is, 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 when 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 in this province.

In the Prakash case, the courts concluded that a significant reapportionment of the estate would be required to eliminate the effect of the discrimination. However, it did not rise to the level of equal distribution. As one daughter waived her claim to any more than $10,000, the other daughters two received one-fifth of the estate, and the residue of the estate was split equally between the two sons.

Final Result Took Account Of Traditional Values

The court in Grewal v. Litt was not entirely persuaded that the parents considered themselves bound by East Indian cultural traditions, and therefore rejected the daughters’ argument that the parent’s reasons for dividing the estate as per their wills were solely driven by adherence to those traditions. However, by looking that the whole of the evidence, the court concluded that the parents’ traditional values had some influence on the parents, which was evident in how they treated their children during their lifetime and in their wills. Growing up, the sons had far more freedom than the daughters, and the court noted that their mother in particular, over her lifetime and without justification, treated her daughters very cruelly.

In considering the relevant factors outlined in Dundson v. Dundson, and in particular, the gifts and benefits the sons received during the parents’ lifetimes, the influence of cultural values on the parents’ choices, and the daughter’s hard work on the farms and contributions to the parents’ care, the court varied the parents’ will by providing that that each daughter receive 15% of the estate (60% collectively), and each son received 20% of the estate (40% collectively). The court concluded that this provision that was adequate, just and equitable in the circumstances, balancing both the parents’ moral obligations owed to their adult children and the appropriate degree of deference given to the parents’ testamentary autonomy.

This case demonstrates that where a deceased parent’s wishes for unequal distribution among their children is based upon reasons contrary to fundamental Canadian values such as gender equality and non-discrimination, the court will intervene and vary the will.

Contact Our Vancouver Estate Litigation Team

If you’ve been left out of a will or received a substantially smaller portion of the estate, contact MacLean Law at 1 877 602 9900 and meet with our Unfair Wills Variation lawyers today.

Joty Sandhu, Associate