Playing Favourites 

Growing up, did you ever get the feeling that your parents were playing favourites?  Did they give your sibling(s) more cake/toys/candy/hugs/love than they gave you?  Of course they did.  But don’t worry – you’re not alone.  It’s been going on since the days of Cain and Abel.  The thing is, for some of us, it never really gets better as we grow older.  For some of us, it gets worse.  Welcome to the heart and soul of estate litigation. 

Let’s say you were the one who took care of your mother as she was lying on her deathbed.  Well to be fair, your brother would have helped you take care of her, but he was away at medical school, becoming a doctor like mom always knew he would be. 

What happens when you find out that your mother’s will says that almost everything in her estate is to go to your brother despite the many years of caretaking that you provided because you turned out to be such a disappointment in comparison to your doctor brother?  Under the Wills Variation Act, R.S.B.C. 1996, c-490, which is legislation unique to British Columbia and does not exist in the rest of the country, you would be able to challenge your mother’s will for a “adequate, just and equitable” inheritance.  In British Columbia, disinherited children and spouses are able to challenge wills, despite the deceased’s testamentary intentions.  However, if the deceased documented in her will, or in a separate memorandum of her reasons for disinheritance, and the reasons turn out to be true, and rationally connected with disinheritance, then the courts would uphold the provisions in the Will and deny your claim under the Wills Variation Act.  

Another common scenario is when aging parents put their bank accounts into joint tenancy with only one of their children so that the assets fall outside of the estate, in order to avoid payment of probate fees.  The parent trusts the child to then distribute the joint property to their siblings according to the will, but the child turns out to be untrustworthy and refuses to pay out to the siblings upon the parent’s death claiming that the bank accounts were all gifts to that child alone. 

The good news is that the remaining children can challenge the greedy child by claiming that the greedy child holds the parent’s bank account on resulting trust for the parent’s estate according to the landmark Supreme Court of Canada decision of Pecore v. Pecore,  2007 SCC 17. 

Hopefully, you’ll never find yourself in one of these situations.  However, if you do, the best thing you can do for yourself is to seek independent legal advice to see what are your rights, and the risks and rewards of litigation in your situation.

Written by Candace Cho, Estate Litigator and Founder of Onyx Law Group in Vancouver, BC.