Understanding Unfair Distribution

Although it may be common practice among many parents, there is no legal obligation for testators to divide an estate equally among their children. For a variety of reasons, a parent may decide to split the estate into significantly different portions for each child. In such cases, does a child have the right to ask the court to change the terms of their parent's will?

Reasons Why Parents Decide on an Unequal Distribution

Many reasons may lie beneath an unfair distribution. Perceived favouritism of one child over another can be a factor. In other cases, a parent may have attempted to pass an asset outside of the estate to one child in trust that he or she would eventually divide the value with the siblings afterwards. In many cases, financial disadvantages due to the age, circumstances and financial means of each child may be significant factors. If disputes cannot be resolved between the siblings, a court judge may need to decide if a distribution was unfair.

In British Columbia, the law places an obligation on testators to make adequate provision in their will for their spouses and children. However, the requirement is for the inheritance to be adequate for the needs of the child.

An experienced estate lawyer is in the best position to research court cases that may provide insight as to how a court judge may decide on a claim.

Possible Remedies for Unfair Distribution

One way for a child to remedy the unfair distribution is through a wills variation claim. Usually, the claim is made when the claimant believes that the will does not adequately provide for his or her care and maintenance.

The claimant can also contest the will. If the claimant believes that the deceased made the will under pressure from a family member or didn't have the mental capacity to write the will, he or she can ask for the will to be set aside. Claimants can also contest the will if it was improperly executed, if fraud may have been involved, or if the will is vague in language.

If an inheritance was gifted to a child outside of the estate, a sibling may dispute the gift and seek to have it reversed. In such cases, the court will examine the specific intentions of the testator at the time that he or she made the gift. If the court finds that the testator did not actually intend to leave the gift to a specific beneficiary or that it was only held in trust for the benefit of other beneficiaries, the gift could be reversed.

Seek Customized Answers to Your Questions

If you have questions about the distribution of a testator's estate, contact the lawyers at Peterson Stark Scott in Surrey. You can fill out our online form to reach us, or call 604-634-2308 or call our toll-free number at 800-675-2419.