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Challenging A Will Based On Unequal Treatment Of Sons And Daughters

Inheritance can be a source of tension without religion and cultural customs interfering.

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Cultural norms and religious values often guide testators when considering provisions for their last wills and testaments. In some cultures the eldest child is deemed to receive more as a result of his birth order. In other cultures sons receive more than daughters. The latter practice was the center of a recent lawsuit in British Columbia, Canada wherein four sisters challenged a last will and testament wherein they were bequeathed only 1.7 percent of their parent’s estate worth $6.8 million (U.S. Dollars). Their two brothers were bequeathed 93 percent between them.

Last month a British Columbia Supreme Court granted each sister approximately $1 Million, overturning the contested last will and testament, to bring each one’s share to 15 percent. The brothers each received 20 percent as a result of the ruling.

The last will’s fairness was challenged on the basis of “tradition-based preference.” British Columbia’s Wills Estates and Succession Act (WESA) includes a provision that allowed the sisters to challenge their parent’s last will because of unequal treatment based on their sexes. In response to this kind of objection, certain parents argue that based on their tradition, it is common to treat sons and daughters differently under a last will and testament and such inequity should be allowed. In British Columbia, this has been a recurring issue especially amongst the East Asian population.

In the instant case, the East Indian family owned a farm. Although the parents’ wills did not explain the imbalance between the sons’ and daughters’ bequests, in prior legal documents pertaining to the family farm, the father referenced the custom of leaving property just to sons. Although the last will and testament was silent on the imbalance, the British Columbia court held that the distribution “fell far short of the moral standards of Canadian society, which provide for men and women to be treated equally.” The daughters aptly noted that there was no actual reason given in the testamentary document  for their unequal gifts, e.g. a failed relationship or disappointment. Often children are disinherited because of lack of contact, dispute or other issues. In this case, there was no reason for the imbalance in the testamentary scheme except for the parents’ cultural views of son and daughter inheritance which gave them standing to object under the WESA statute. The Court readjusted the percentages, ultimately giving little more to the brothers than their sisters, a nod to the parents’ cultural beliefs.

This case and others like it demonstrate the tension between testamentary intent and what is acceptable under the law. For example, one cannot disinherit her spouse. Jurisdictions have statutory mechanisms, often called a “right of election” to allow a disinherited spouse to claim one-third of a deceased spouse’s estate. This includes assets passing through a will and also outside of a will, via operation of law (notably WESA does not pertain to assets passing outside of probate). In right of election and WESA cases, public policy dictates how you may or may not treat your closest family members.

The British Columbia case highlights issues that arise in estate planning for individuals in many cultures and religions. Throughout  history we have seen different variations of the concept of priomogeniture, the right, by law or custom, of the firstborn son to inherit the parent’s entire estate which was a common practice in various monarchies.

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The directive to give a firstborn son “extra” is rooted in the Book of Deuteronomy: “He (the father) must acknowledge the firstborn . . . and give him a double share in all that he possesses, for he (the firstborn son) is the first fruits of his strength; the right of the firstborn is his.” Deuteronomy 21:17. For observant Jewish testators the practice of giving the eldest son a double portion, is an issue that must be resolved in light of the parent wanting sons and daughters (who do not inherit under Biblical law) to be treated equally. There are several mechanisms employed to equalize the inheritance including the creation of a debt to the children (who receive a lesser share in accordance with the law) for a significant sum of money, larger than the expected value of the estate. The debt becomes due one hour preceding the testator’s death. The debt passes to the legal heirs and it includes a provision voiding the debt if the legal heirs equally share their inheritance with the others.

Inheritance is already a source of tension without religion and cultural customs interfering. In addition to the actual property at stake, so are emotions and feelings. It would behoove all testators to consider the ramifications of any unequal treatment in a last will and testament as it will surely give rise to some form of conflict among the family.

–CORI A. ROBINSON

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