Variation of Wills & Sibling Inequality 

Fair & Unfair Wills

It is clear from the law that has developed with respect to the variation of wills, that testators may have a moral obligation to provide for their children in their wills. One of the interesting issues that sometimes arises is how will a court treat a will that substantially prefers one child over another. This issue was dealt with  in the case of Gollan v. Burnett, 2014 BCSC 2424, where the Plaintiff who commenced the Wills Variation action was the daughter of the Deceased and was left substantially less than her brother. The Court upheld the will and dismissed the challenge brought by the daughter as she was given an $80,000 cash gift in the will and the Court determined that the will-maker had logical reasons to prefer her son over her daughter. The Court made the following comments:

A rational reason for disproportionate distribution in the will

            [83]        Barbara was treated disproportionately by Ms. Tobin in her will when compared with Robert. However, it is also the case that Barbara is to receive a significant benefit   and I find that the moral obligation of Ms. Tobin has been satisfied to a considerable  extent. As to the disproportionate treatment of Barbara, I find that there is a rational reason for the different treatment of Barbara. As above, there are the three estrangements one of them lasting four years. As evidenced in Ms. Tobin’s letter of July 22, 1993, it is clear that Ms. Tobin took the May 1993 “feelings letter” of Barbara to mean that the relationship between the mother and daughter should be less. In contrast, the evidence is  that Robert managed to maintain a supportive relationship with Ms. Tobin, although that undoubtedly was difficult as well.

            [84]        In summary, it is clear that Barbara was not disinherited and I conclude that Ms. Tobin fulfilled her moral obligations in her will with the $80,000 cash legacy to Barbara.  Further, while the family relationships are not flattering to anyone, there is a logical connection between the disproportionate distribution in the will, as between Barbara and Robert, and the history between the mother and daughter. Ms. Tobin intended to favour Robert over Barbara in her will, she had a reason to do so and she was entitled to do so.

A fair reason to prefer a child

It is clear from this decision that when there is a justifiable reason to prefer one child over another and when both children have received some benefit from an estate, a court may not intervene.

Related Information:

• Homosexuality Not a Factor for Disinheriting in BC
• Equality & Law in BC Wills Variation
• 4 Things to Know About Challenging a Will in Vancouver

Contacting a Wills Variation & Estate Litigation Lawyer in Vancouver

If you believe that you have been treated unfairly by a will, please contact the Kushner Law Group at 604-629-0432 or contact us online today to schedule a free consultation.