Can I Make An Uneven Distribution Between My Children In My Will?

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As an Estate Planning Lawyer, I get asked this very frequently. Family dynamics are all different. There are a myriad of reasons why parents chose to favour one child over others. Should they be “allowed” to do so? Isn’t it their prerogative? Their money? As always, it depends on the circumstances of each case. A child can claim against a parent’s Estate if they feel they have been unfairly provided for. In Tom v. Tang, 2023 BCCA 221, the BC Court of Appeal addresses this exact issue – what is a parent’s moral duty to make provisions for their children in their Will? How does the Court resolve disputes around children being treated unequally?

In Tom v. Tang, the deceased parent had five surviving children. She left 85% of her estate to two of her five children. The balance of the 15% was then split three ways between the remaining three children. In looking at the relationships between each child and the deceased parent, it was concluded that the five children had all contributed to the family business, and all had a good relationship with their parents. The only difference was that the two children who received the 85% had lived with their deceased mother and provided primary care for her in the last three years of her life. The five children all made a good income on their own, and there was no financial reliance or need of any of the five children on the parent.

The Court found:

“51  In summary, [previous cases] do not stand for the principle that a testator’s unequal treatment of adult children must be deferred to, without regard to the objective standard of the reasonable testator and current social norms, as long as the subjective reasons given for the unequal distribution are valid and rational. These cases recognize instead that a testator’s moral duty to adult children must be assessed from the viewpoint of a reasonable testator, and that the moral duty may be negated where there is just cause.”

The Judge at hand decided that the deceased parent DID NOT “meet the objective standard of a judicious parent” and it was directed by the Judge that the two older children should each receive 30% of the entire estate, with the remaining 40% shared equally among the other three children. So, not a completely even split, but still not quite as drastic.

If you are wanting to treat your children differently in your Will, it is fundamental to consult with a lawyer, who can guide you based on legislation and case law, and discuss the varying options with you.

 


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