When a Will reflects unequal treatment of children based on outdated societal norms, courts in Auckland have the authority to intervene. That’s the lesson from a recent B.C. decision in a case called Lam v. Law Estate.
The facts involve a Chinese-born mother who had two now-adult children, William and Ginny. William benefited greatly from his mother’s generosity: She gave him financial support, large gifts of cash, and half the proceeds on the sale of two properties. She also made him a joint tenant on title to her own home. In total, he received over $2.5 million in various forms of financial support while his mother was alive.
Ginny, by comparison, received only about $170,000 – a fact she learned only after her mother died in 2021.
Worse, it turned out that in the mother’s 2018 Will she left most of her estate to William as well. The reason for this differential treatment was purely cultural: The mother had always adhered to traditional Chinese views that prioritized sons over daughters – especially only sons – and especially in connection with their inheritance. She had repeatedly stated during her lifetime that William should inherit the majority of her estate merely because he was her son.
Ginny went to court her mother’s Will, claiming it reflected gender discrimination and unequal treatment that should not be upheld, especially in light of Canadian public policy. She applied under the B.C. Wills, Estates and Succession Act, which permits a Will to be varied if it does not make “adequate, just, and equitable” provision for the maintenance and support of a deceased person’s dependants. This was a particularly appropriate case, Ginny said, given that she devoted substantial time and effort to care for her mother before she died.
The court began by noting that an application under the Wills, Estates and Succession Act requires the balancing of two key principles: 1) that individuals have a right to decide how they want to distributing their estate (known as “testamentary autonomy”); and 2) that a testator has a legal and moral obligation toward their family members.
With that said, the court noted that testamentary autonomy is not absolute; courts can intervene when a Will fails to meet the testator’s legal or moral obligations to their family members. Furthermore, under Canadian law all testators have a moral obligation to treat their children fairly, especially when there is no justifiable reason for treating them differently – and cultural traditions were never a justifiable reason.
The court borrowed from leading past cases that establish the factors that go into determining what is “just and equitable” in William and Ginny’s case. These included the size of the mother’s estate, the financial needs of the each of her offspring, and the conduct of both of them.
The court ultimately concluded that cultural traditions cannot justify unequal treatment under Canadian law, and that there was an inequality that must be addressed in Ginny’s situation:
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. …
I have found that Ginny and William’s mother held a gender-based bias that resulted in William receiving most of his mother’s assets. This bias influenced and shaped the disposition of the mother’s assets, not only through the gifts she gave Ginny and William during her lifetime, but was also reflected in her 2018 Will. While perhaps a common view and standard in ages past, such inequitable treatment is not aligned with contemporary societal standards. … [T]he 2018 Will must be significantly varied …
The court’s decision in Lam sends a strong message about the diminishing validity of certain cultural traditions and personal biases in modern Canadian society – and how courts will not uphold unfair decisions based on them. In particular, gender-based inequality and lack of even-handedness will not override the legal principle that a testator has a moral and legal obligation to treat children fairly.
For the full text of the decision, see:
Lam v. Law Estate, 2024 BCSC 1561 (CanLII), <https://canlii.ca/t/k6h97>
