Estate Litigation: Making Sense of “Morality” – Part 2


Community Standards in Canada & Wills Variation

Equality of Sons & Daughters

In the previous post Estate Litigation: Making Sense of “Morality” – Part 1, we explored the intersection of morality and freedom of testators to disinherit beneficiaries (specifically) children whose conduct they may view as being immoral. The actions of the testator and their reasons for disinheriting beneficiaries are considered in the context of community standards of morality. This raises an interesting question where a testator may have moved to Canada from a culture where there are vastly different “community standards of morality.” A key example where this issue arises within the context of wills variation and estate litigation is when a cultural practice is to leave the vast majority of an estate to sons rather than daughters.

Leaving estate to sons rather than daughters

This issue was before the British Columbia Supreme Court in the case of Prakash and Singh v. Singh et al, 2006 BCSC 1545 (CanLII), where the Court noted:

            [57]           In terms of moral obligations, Mrs. Singh chose an option that fell short, that  is, according to the moral norms of our Canadian society.  A variation is needed.

            [58]           In modern Canada, where the rights of the individual and equality are  protected by law, the norm is for daughters to have the same expectations as sons when it comes to sharing in their parents’ estates.  That the daughters in this case would have this expectation should not come as a surprise.  They have lived most of their lives, and their children have lived all of their lives, in Canada.

            [59]           A tradition of leaving the lion’s share to the sons may work agreeably in other societies with other value systems that legitimize it, but in our society, such a disparity has no legitimate context.  It is bound to be unfair, and it runs afoul of the statute in this province.

A variation is needed

It is clear from this decision that when a testator applies cultural standards that differ from Canadian community standards, it is the Canadian standard that will likely prevail.

Related Information:
Contacting a Wills Variation & Estate Litigation Lawyer in Vancouver

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

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