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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.

Gender, Culture, and Wills Variation Claims – Can cultural traditions allow parents to favour sons over daughters in their wills?
October 27, 2023

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, […]

The Importance of Financial Disclosure in Wills Variation
April 17, 2023

This obligation can often be overwhelming and intimidating for many when dealing with a legal case. However, this is a common and essential aspect of serval legal matters, especially family or the process of wills variation. Financial disclosure for Wills Variation is providing information about the financial assets and liabilities of a deceased person’s estate […]

Prejudging Wills Variation Claims
February 21, 2023

Background Justice Douglas refused to prejudge a wills variation claim on an interim application. In Rivers v. DeVouge, 2022 BCSC 2267, John Richter successfully defended an application brought by the plaintiff wife. The deceased husband prepared a new will and created an alter ego trust shortly before he died. He transferred many of the assets […]

Settlement Offers and Releases: Pitfalls and Problems
August 21, 2020

Settlement Offers and Releases: Pitfalls and Problems Most litigants are able to resolve their issues without trial by agreement. Releases are a standard part of the process and provide assurance to both sides of the transaction that the issue has been laid to rest and neither side can bring any future claims. Often the releases […]

Secret Trusts and Estates: What are they and how do they work?
June 25, 2020

Secret Trusts: What are they and how do they work? Secret Trusts are not solely the product of Hollywood murder mysteries. While they are rare, they still do make an appearance in Estate claims. Most recently, they came before our Court of Appeal in Bergler v. Odenthal, 2020 BCCA 175 What is a “Secret Trust”? […]

A Change of Mind: When a Testator Alters Their Will
October 25, 2019

In a case decided earlier this year, the British Columbia Supreme Court discussed the implications of a testator altering his or her will after the will has been made. In Levesque Estate (Re), 2019 BCSC 927, the testatrix made a will nine years before her passing. At some point during the time between the creation […]

Is a Draft Will Legal?
March 7, 2017

Common questions that people have in British Columbia estate law include: “Is a draft will legal” or “binding” or “valid”? This article attempts to give some guidance on how to answer those questions. In British Columbia, for a will to be valid, it must meet the requirements found in Section 37 of the Wills, Estates […]

What counts as separation in BC?
January 31, 2017

In BC, the Family Law Act and Wills, Estates and Succession Act define the term spouse by reference to the term “separation”. Under WESA, section 2 provides that spouses cease to be spouses as follows: If they are married, on separation as it is considered under the FLA; or If they are living in a common […]

Wills Variation of Teen Wills
April 9, 2014

Can my teenager make a will and can I wills variation it? Section 36 of the new Wills, Estates and Succession Act (WESA) says that a person who is 16 years old and mentally capable of doing so can make a will. A 16 year old making a valid will is new in British Columbia […]

Limiting Powers of Attorney
September 27, 2013

Recently in Easingwood v. CRockroft, 2013 BCCA 182, the honourable Madam Justice Saunders of the British Columbia Court of Appeal considered the legalities arising when an attorney under a power of attorney creates an alter ego trust on behalf of a principal. For a better understanding of alter ego trusts, please click here. The case […]

What is an Alter Ego Trust?
September 23, 2013

An alter ego trust may be used to avoid wills variation claims. When someone dies, everything that was in their legal name at the time of death is presumed to form part of the deceased’s estate. It is the deceased’s estate that then passes to beneficiaries. Who the beneficiaries are is usually determined by the […]

Moral versus Legal Claims
April 14, 2013

Beyond a consideration of the competing legal claims are the moral claims which the courts must consider in deciding a Wills Variation Act claim. These moral claims are usually more individual and specific than legal claims and can include the most varied considerations, some of which be assured/implied expectations, disability and financial circumstances. It will […]

Adequate Provision that is Just and Equitable
April 10, 2013

The most intriguing part of the Wills Variation Act (now the Wills, Estates and Succession Act) is that “adequate provision for the proper maintenance and support” and “adequate, just and equitable” is judged in light of contemporary community standards, legal and moral. These legal and moral standards are different in different parts of our country, different in […]

Understanding Wills Variation
April 6, 2013

It was the earlier lobbying of women’s groups in the early 20th century that was responsible for the enactment of the first Wills Variation Act (now the Wills Estates and Succession Act). The evolving rights and role of women in society has continued to stand behind the interpretation of the Wills Variation Act by the […]

Trusting the Trustee
April 2, 2013

Beneficiaries have to be able to trust their trustee. Period. Trusts occur in different ways: Automatically by operation of the law, by express written document, or by express unwritten agreement. Sometimes trustees don’t know they’re trustees because the trust has arisen automatically by operation of the law. That is no excuse. The relationship between a […]

What is a Beneficial Interest?
April 1, 2013

A beneficial interest is a term used to describe the situation that occurs when something is held in “trust”. You may have a beneficial interest in something if you are the “real” owner of it, but legally it is “held” by someone else. For example, Benny is 80 years old. Benny buys this house with […]

Estate Left to Stars Likely Challenged
March 18, 2013

A BC estate is subject to the Wills, Estates and Succession Act (WESA, formerly the Wills Variation Act). WESA allows spouses and children to vary wills of their parents and spouses. In such cases, the court struggles with balancing two principles: that a deceased has the right to choose what should happen with their assets […]

Varying Wills in British Columbia
December 12, 2012

Estate litigation lawyers use part of the Wills Estates and Succession Act (or WESA, formerly the Wills Variation Act) when varying wills. In British Columbia, wives, husbands and children are protected from their parents or spouses writing wills and leaving their assets in a way that offends contemporary community standards. Section 60 of WESA (formerly Section […]

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