A recent Supreme Court of British Columbia decision varied a Will of a mother to address gender-based discrimination.
In, Lam v Law Estate, 2024 BCSC 1561, Ms. Lam sought to vary the Will of her mother pursuant to s. 60 of the Wills, Estates and Succession Act (“WESA”).
According to section 60 of the Wills, Estates and Succession Act (“WESA”), a spouse or child may seek to vary a Will to make “adequate, just and equitable” provisions for their maintenance and support.
Ms. Ginny Lam (“Ginny”) alleged that her mother’s Will did not make adequate, just and equitable provisions for her maintenance and support. Ms. Lam alleged that her mother’s unequal distribution of her estate was a result of preferential treatment of her brother, Mr. William Law (“William”) as the only son based on traditional Chinese values.
The mother died on February 14, 2021. Her husband, Ginny and William’s father, predeceased her. At the time of the father’s death, the mother inherited the family home, three rental properties, and any remaining funds from a million-dollar lottery win in 1992 or other savings.
In about 2002, the mother sold two of her rental properties and gave approximately half of the net proceeds to William. In 2004, the mother transferred her ownership of the family home from herself as sole owner into a joint ownership with William. Ginny was not advised about these occasions until after her mother’s death.
In 2018, the mother executed a Will which provided one property transferred to William (the “First Property 1”) and another property be transferred to William and Ginny in equal shares (the “Second Property”).
Ginny argued that given the totality of the circumstances and in light of what William received outside of the Will, Ginny was treated unfairly. In particular, total value of the gifts she received from their mother during the mother’s lifetime was $170,000 whereas the total value of the gifts William received from their mother during the mother’s lifetime was at least $2,527,389.38.
Justice Morellato’s decision stated that it is clear that both Ginny and William were dedicated to their mother. For instance, the mother insisted on staying with Ginny at Ginny’s home for her medical care, assistance, and comfort following surgeries and significant health events. It was also found that William, like Ginny, was deeply devoted to his mother and very attentive to her health care. Overall, however, Justice Morellato concluded that as her mother aged, Ginny took on more of the time and effort required for her mother’s medical care than her brother or anyone else.
Justice Morellato stated:
The evidence established that [the mother] loved her children dearly. However, with the utmost of respect, I also have no difficulty in concluding that the evidence before me also establishes that she favoured William because of his gender. More specifically, I find that [the mother] held the view that sons were entitled to most or all of a parent’s estate, rather than daughters. This bias influenced and informed the gifts she gave to William and Ginny throughout her life, and was also reflected in her Will.
[…]
While perhaps a common view and standard in ages past, such inequitable treatment is not aligned with contemporary societal standards.
Justice Morellato varied the Will to provide Ginny with 85% of the Second Property.
This is a powerful decision that addresses gender-bias as a ground for variation, which will pave the way for future variation claims.
For more information on Will Variation or for assistance in handling an unfair Will, please contact any member of our Estate Litigation Group.
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Perminder S. Tung Partner | Estate Planning & Litigation Vancouver |
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Poonam Pabla Lawyer |Estate Planning & Litigation Vancouver |
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.