With respect to unequal treatment of siblings, two recent cases have further entrenched the notion that gifts made to a child by a parent prior to death are a legitimate consideration in both the parent leaving a smaller share to that child through the Will, and to the courts refusing to vary such a Will if the child advances a claim under the Wills Variation Act. Both Doucette v. McInnes(2009 BCCA) and Gould v. Royal Trust Corporation of Canada (2009 BCSC) elevate the importance of gifts made during a deceased’s lifetime beyond previous cases. In Gould, this is particularly significant due to the fact that the daughter who sought to vary her mother’s Will was physically disabled and had not been gainfully employed for a lengthy period of time prior to her mother’s death. Traditionally, these would be factors that could indicate financial need on the part of the daughter, sufficient to increase her mother’s moral obligation to provide for her.
The Court found though, that in part due to a gift of valuable property to the daughter during her mother’s lifetime, any modification of the Will resulting in an equal division of the mother’s remaining assets would in fact have resulted in an inequitable surplus inheritance by the daughter, to the detriment of her sibling.
Both of these cases also addressed issues relating to estrangement and difficult family relationships, which are unfortunately common in this field of law. If you have questions about advance gifts you have given or received, or about providing for the additional needs of one child over another, qualified legal advice is imperative to ensuring your wishes are carried out after your death.
A pro forma Will is particularly insufficient to address distributional inequalities between beneficiaries. For more information on the hazards of a so-called ‘simple’ Will, see DIY Risks.
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© 2012 Lockhart Law Corporation