/ Case Law

Case Brief - Varying a Will

In Grewal v. Litt, 2019 BCSC 1154, the Supreme Court of British Columbia varied a will that divided a couple's estate unevenly between their sons and daughters.

Facts

Nahar Singh Litt and his wife Nihal Kaur Litt lived in British Columbia. Both died in 2016 within two months of each other, at ages 88 and 89 respectively. Over their lives, the couple had amassed an estate worth over $9M.

The Litts had six children. Their mirror wills specified that the estate would be divided up between their children as follows:

  • $150,000 to each of the four daughters (7% of the estate)
  • Everything else to the two sons (93% of the estate)

The Litts' four daughters sought to have the will varied to divide the estate equally between all six children. They challenged the will on the grounds that it discriminated against them as daughters.

The Issue

In British Columbia, courts can vary the will of a deceased individual if that will doesn't adequately provide for the their spouse or children. Section 60 of British Columbia's Wills, Estates, and Succession Act, S.B.C. 2009, C. 13 (the "WESA") states:

Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker's estate for the spouse or children.

Analysis

The WESA was considered by the Supreme Court of Canada in Tataryn v Tataryn, [1994] 2 SCR 807. The Court held that, when considering a will variation, a court must consider what would be "adequate, just and equitable."

Since then, subsequequent cases have identified factors to assist in determining what is adequate, just, and equitable. These factors include the size of the estate, the testator's reasons for disinheriting, the relationship between the testator and claimant(s), amongst others.

Applying this to the case at hand, Justice Elaine Adair found that the will should be varied so that 60% of the estate goes to the daughters ($1.35M each), and 40% to the sons ($1.8M each).

While all of the siblings are now financially independent, the Litts had a moral obligation to their daughters, who worked hard throughout their lives and cared for the parents in the last years of their life. Justice Adair held that the division of the estate should be modified to compensate for this discrimination, but opted not to divide the estate compltely equally out of respect for the Litts' testamentary autonomy.

What do you think about this provision in BC estate law? Should other provinces follow suit and enact similar provisions?