Gender, Culture, and Wills Variation Claims – Can cultural traditions allow parents to favour sons over daughters in their wills?
Introduction
Cultural traditions play a significant role in shaping family dynamics and inheritance practices across communities. For example, it’s well-known that many cultures tend to exhibit a preference for sons over daughters in various aspects of family life, including inheritance. When these traditions conflict with the principles of equality and fairness enshrined in Canadian law, however, the courts may intervene.
The case of Prakash v. Singh 2006 BCSC 1545 (“Prakash”) serves as a poignant example of how the court applies wills variation law in the face of contentious cultural traditions. In particular, this case concerns the unequal treatment of sons and daughters in South Asian families. In Prakash, the will of the deceased entitled each of the three daughters to only $10,000 from the estate, while it entitled each of the two brothers to $275,000.
Many Indo-Canadian women may choose not to challenge unequal inheritance practices like this due to a fear of straining family ties. This may explain why one sister in Prakash waived her claim. Fortunately, the two other sisters elected to pursue a wills variation claim. The claim produced a landmark decision on the intersection of individual rights, cultural expectations, and the legal obligation to provide adequately for the family members in a will.
The Law
Section 60 of the Wills, Estates, and Succession Act, SBC Chapter 13 empowers the court to intervene if a will fails to make adequate provision for the proper maintenance and support of the will-maker’s spouse or children. This requires the courts to consider the moral responsibility of a testator to support their dependents in addition to the well-established – and sometimes competing – principle of testamentary autonomy when analysing such variation claims.
What exactly does “adequate provision” mean? The court in Tataryn v Tataryn Estate, [1994] 2 S.C.R. 807 attempted to answer this question, highlighting important factors such as the relationship between the testator and the claimant, the size of the estate, contributions by the claimant, and the testator’s reasons for disinheritance. Overall, the court has broad discretion to make an assessment, but should consider both the specific circumstances of the family and modern values and expectations.
In the case of Prakash, the court rejected the traditional cultural norm of favoring sons over daughters as a justification for inadequate provisions for daughters. The court applied the law with Canadian moral and social norms in mind. Recognizing Canada’s commitment to gender equality, the court decided to vary the will to ensure the daughters were adequately provided for. This judgment emphasizes that gender-based disparities in inheritance are incompatible with the Canadian values of equality and non-discrimination protected by law.
It’s important to note that, while the legal system strives for fairness, this doesn’t necessarily mean that each beneficiary will receive an equal share of an estate. As mentioned above, the court acknowledges that each family has its unique dynamics and circumstances to consider. For instance, the court in Prakash recognized the sons’ unparalleled financial and familial contributions to their mother throughout her life which influenced her decision to favor them in her will. This resulted in the court varying the will to provide 20% of the estate to the two plaintiff daughters, and 30% of the estate to the two sons. The decision increased the sisters’ inheritances by over $100,000 each, but still left each son with $58,000 more than the daughters.
Conclusion
Despite a testator’s desire to follow cultural traditions, they must comply with their legal obligations imposed by provincial statute when creating their will. The law is clear that testators cannot use cultural traditions as a shield to perpetuate gender-based disparities in inheritance, illustrating the courts’ commitment to upholding the Canadian values of equality and justice. As the multicultural identity of Canada continues to develop, legal frameworks will likely also adapt and change to address the complex relationship between cultural traditions and the pursuit of fairness in estate planning.
About the Author
Emma Wright, JD is a 2023 graduate of the Peter A. Allard School of Law at UBC. She is currently completing her articles at Richter Trial Lawyers with a specialization in wills variation claims. As a B.A. Anthropology graduate from Western University, she developed a passion for research, advocacy, and creative problem-solving. This inspired her to pursue a law degree. During her time at Allard School of Law, she gained practical experience working at the Law Student’s Legal Advice Program (“LSLAP”) Clinic, where she helped low-income community members with human rights, small claims, and residential tenancy cases. In addition, Emma successfully completed the Allan McEachern Advanced Trial Advocacy Program. This rigorous program gave her the chance to practice litigation skills and gain valuable feedback from senior lawyers and judges of the British Columbia Supreme Court. She was taught the importance of being a zealous advocate, and hopes to have more opportunities to assume this role throughout her articling period and beyond.
