Commercial Litigation and Dispute Resolution Blog

Wills are intended to govern the distribution of an estate, keeping in mind the wishes and intention of the will-maker.  As a general rule, a will-maker may distribute their estate as they see fit and the courts recognize this principle of “testamentary autonomy”.  However, this right is not absolute.  In British Columbia, the courts can vary a testator’s wishes where the will does not make just and adequate provision for a surviving spouse or child.   As a recent decision confirms, a will-maker’s disproportionate treatment of their children on the basis of gender alone will result in the variation of that will. 

The ability for a surviving spouse or child to vary a will is found in section 60 of the Wills, Estates and Succession Act (“WESA”), which empowers a Court to vary a will if, in the Court’s opinion, the will-maker does not make an adequate provision for the proper maintenance and support of a spouse or child.  The Court has discretion to make an order that it believes is just and equitable in the circumstances.  

A recent decision from the BC Supreme Court illustrates the Court’s willingness to step in when a testator, contrary to prevailing social norms, unfairly favours a surviving child on the basis of gender.  In Lam v. Law Estate, the BC Supreme Court considered a will that bequeathed the lion’s share of the testator’s estate to the will-maker’s son over her daughter, simply because he was a male. 

The testator, Mrs. Law, had two children: William and Ginny.  During her lifetime, Mrs. Law provide her son gifts with a value of over $2.5 million in the form of property and other assets, whereas her daughter, Ginny, received only about $170,000 during her mother’s lifetime.  In 2018, Mrs. Law executed a will which bequeathed the majority of her estate, including the family home, to William.  In contrast, the will left Ginny with a half interest in a rental property in East Vancouver, valued at $459,222.  Mrs. Law passed away in February 2021, having been predeceased by her husband. 

When valued at the time of Ms. Law’s death, including those gifts that were given before and through the 2018 Will, William received approximately $2.9 million from Mrs. Law’s estate, representing an 82.6% share. 

Ginny was unaware of the 2018 will until after her mother’s death.  She commenced a claim to vary the will following unsuccessful attempts to negotiate with her brother.  Ginny argued that the significant disparity in the gifts and bequests left to her and William was a result of their mother’s long-standing gender bias.

The Court found that both William and Ginny were devoted to their mother and were equally attentive to her personal and medical needs following their father’s death.  However, as their mother aged, Ginny began to assume a greater role in her mother’s medical care.  William managed their mother’s financial affairs and excluded Ginny from involvement, despite her repeated offers to help.  As a result, Ginny was unaware of her mother’s financial situation until after her mother’s death.

The Court found that William had received preferential treatment during his mother’s lifetime as a result of his gender.  Prior to her death, Mrs. Law told Ginny that William was entitled to the estate’s assets because “he is the son”, a belief arising from her mother’s closely held traditional Chinese values.

In assessing Mrs. Law’s gender bias, the court found that:

. . .Ginny and William’s mother held a gender-based bias that resulted in William receiving most of his mother’s assets.  This bias influenced and shaped the disposition of the mother’s assets, not only through the gifts she gave Ginny and William during her lifetime, but was also reflected in her 2018 Will.  While perhaps a common view and standard in ages past, such inequitable treatment is not aligned with contemporary societal standards.

Accordingly, the Court was unwilling to defer entirely to Mrs. Law’s testamentary autonomy and exercised the broad discretion conferred on it to vary the 2018 will.  Although a will-maker is under no obligation to provide equally for each child, the Court found that Mrs. Law fell below contemporary moral norms in the division of her estate a result of gender-based bias.

The Court applied the factors outlined in earlier case law to assess wills variation claims, particularly in the context of adult, independent children.  Those factors include:

• The nature of the 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; and
• competing claimants and other beneficiaries.

In applying these considerations, the Court found that Ginny and her mother maintained a close relationship, the estate was large enough to redistribute the assets, Ginny had significantly contributed to her mother’s care and comfort, and Ginny held a reasonable expectations of a significant inheritance.  The Court placed further emphasis on the value disparity in the gifts given to the children during their mother’s lifetime.  The Court concluded that Mrs. Law had no valid, rational, just, equitable or moral reason for the disproportionate treatment of her two children.

As a result, Ginny was awarded an 85% share of the East Vancouver rental property, being about a $320,000 increase to the bequest left her under the will.  The Court acknowledged that this “pales in comparison” to the value of all the gifts William received during his mother’s lifetime, but could not justify providing him with no interest in the East Vancouver rental property, as he was also a devoted son to his mother.

This decision should be regarded as a cautionary tale to will-makers intending to disinherit their children on the basis of gender.  Although common practice in certain cultural backgrounds, Canadian courts will closely scrutinize any will which relies solely on gender as justification for disproportionate treatment between children.  As Madam Justice Morellato stated in this decision: “contemporary justice does not countenance preferential treatment towards certain children over others based on their gender.”