Tag: discrimination

28 Nov

A Step Toward Equal Inheritance Rights

Nick Esterbauer Estate & Trust, In the News, Public Policy, Wills Tags: , , , , 0 Comments

A recent decision by an Egyptian court saw the reversal of the trend in following Islamic Sharia inheritance law under which female beneficiaries are entitled to half the interest of their male counterparts.

The claimant, a human rights lawyer, applied to obtain the same rights as her brothers on the death of her father.  Her case was previously dismissed by two courts.

In Egypt, Sharia principles are typically applied unless the parties agree that Christian inheritance laws, which do not favour male beneficiaries over females, instead be followed.  In this case, the claimant and her brothers agreed that the administration of their father’s estate would not be subject to Sharia inheritance rules.

Last year, a proposed law in Tunisia designed to promote equality in respect of inheritances sparked discussion regarding unequal inheritances in a number of jurisdictions including Egypt.  A 2017 survey suggests that over half of Tunisia’s population remains opposed to equal inheritance rights.

It is anticipated that this decision may result in significant change in jurisdictions where Sharia law has historically been applied in respect of personal property, regardless of religion.

Canadian courts have also considered the issue of cultures that may support an estate plan favouring sons over daughters simply on the basis of their gender.  In Grewal v Litt, 2019 BCSC 1154, the daughters of the deceased challenged the Wills left by their parents, who both died in 2016, on the basis that they discriminated against them in favour of their brothers on the basis of their sex.  The four daughters applied under Section 60 of the Wills, Estates and Succession Act, SBC 2009, c 13 (the “WESA“), for the variation of the Wills that directed the payment of $150,000 to each daughter, while the residue of the estates valued at greater than $9 million was left to the two sons.

Justice Adair noted that there was no dispute that the parents owed a moral obligation to their daughters under BC law, and, as the Wills made inadequate provision for them, they should be varied under the WESA.  The Court attempted to resolve the matter by balancing the adequate, just, and equitable provision for the daughters with their parents’ testamentary autonomy and varied the division of estate assets from approximately 93% in favour of the sons with only a combined 7% for the daughters, to the more equitable division of 15% of the value of the estates for each daughter and 20% for each son.  Notwithstanding the granting of the variation of the Wills, the Court stopped short of finding that the parents’ testamentary intentions were motivated solely by unacceptable discrimination against the daughters.

While many provinces do not recognize a parental obligation to benefit a non-dependant adult child after death, coming years may nevertheless see an increase in the number of challenges to a will on the basis that its terms are discriminatory.

Thank you for reading.

Nick Esterbauer

 

Other blog posts that may be of interest:

25 Jul

Testamentary Freedom versus a Moral Obligation to Provide: Striking a Balance

Hull & Hull LLP Elder Law, Estate & Trust, Estate Planning, Hull on Estates, Wills Tags: , , , 0 Comments

A recent decision of the Supreme Court of British Columbia examined the tension between a testator’s moral obligation, if any, to provide for a child under a will, and that testator’s freedom to dispose of his or her estate as that testator sees fit.

The facts in Grewal v Litt are relatively simple and were generally not in dispute between the parties.  The applicants were the four daughters of the two testators whose wills were under scrutiny.  The respondents were the testators’ two sons.  The testators had died leaving mirror wills, each benefitting one another.  Upon the death of the survivor, the wills left modest bequests of cash to each of the daughters, while the two brothers shared the residue.

The combined values of the estates exceeded $9 million.  Pursuant to the terms of the wills, each daughter was to receive a bequest of $150,000, or about 1.5% of the total value of the two estates.  The two brothers were the sole residuary beneficiaries and stood to split the remaining 94%.

The daughters brought an application to vary the wills under section 60 of British Columbia’s Wills, Estates and Succession Act (the “WESA”) to provide an equal distribution of the residue between all six children.  The application was brought on the basis that the testators had purportedly discriminated against the applicant daughters based on their adherence to traditional cultural values.  The respondent brothers agreed that the terms of the wills did not fulfill the testators’ moral obligations to the daughters, but did not agree that the solution was an equal distribution of the residue.

The court grappled with the tension between the need to make proper provision for the daughters versus recognizing the testators’ broad testamentary freedom to dispose of their estate as they see fit.  Ultimately, the court found substantially in favour of the daughters and held that each daughter would be entitled to a 15% share in the residue, with the respondent brothers each receiving a 20% share.

In reaching that decision, the court first looked at section 60 of the WESA and noted that the value of the estates was large enough that the court could both consider the parents’ testamentary autonomy in favouring the respondent brothers while nonetheless making adequate provision for the applicant daughters.

The application judge then referred to numerous prior decisions in which the court had ordered variations of wills when unequal testamentary distributions were made by testators who believed themselves to be bound by cultural norms.  Finally, the judge noted that the significant contributions by the daughters to the testators during the last few years of their lives, which were not replicated by the brothers, enhanced the testators’ moral obligation to provide for the daughters.

This case’s potential impact in Ontario remains to be seen, although it is important to the note that Ontario lacks a statute with as broad a mandate for varying testamentary documents as the WESA.  Part V Ontario’s Succession Law Reform Act is a comparable parallel that allows a court to make adequate provision for a testator’s dependants, but that language is less broad than the language of the WESA.  In any event, the Court of Appeal for Ontario held in Spence v BMO Trust Company that absent any requirement by a testator to adequately provide for a dependant, the testator has broad testamentary freedom.

Thanks for reading.

Garrett Horrocks

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