Surrey Estate Litigation: Disinherited Daughters: a Cultural Problem

With culture comes long-standing customs.

In some cultures, one tradition unfortunately results in disinheriting women. In short, parents draft Wills where the bulk of an estate (often, all of it) is left solely for their sons.

This, of course, presents issues; for example:

• misogyny runs inherent in this tradition marginalizing a women’s place in the family dynamic and their rights to make choices; and

• the division of great wealth can result in the will-maker’s son living in prosperity, and daughter living in poverty.

This custom originated outside of Canada and at a time where estates were worth little. Nowadays, particularly in BC, estates tend to be worth much, much more. In considering BC home prices alone, daughters are being disinherited by millions of dollars.

Seminal examples include the cases of Grewal v. Litt, 2019 BCSC 1154 (outlined below) and Parkash and Singh et al, 2006 BCSC 1545.

In this Grewal, supra, the mother and father (the “Parents”) had six (6) children: two (2) boys and four (4) girls. When the Parents both passed, their estate was worth approximately nine million dollars ($9 million). Unfortunately, the Parents’ Will divided the property as follows: $150,000 to each daughter (totaling $600,000), and the residue of the estate to be divided equally to the sons (approximately, $8.5 million or $4.25 million each). Yes – you may need to read that again:

each son was entitled to $4.25 million and each daughter, $150,000.

The Daughters’ argued that the Parents impermissibly preferred their sons over their daughters in the Will, and therefore failed in their moral duty to the Daughters, which was to treat all Siblings equally. They stated that such favouritism is not a valid or acceptable reason for disinheritance or (in this case) unequal distribution and is contrary to public policy.  In essence, the Daughters argued that, in the circumstances, no weight should be given to the Parents’ testamentary autonomy because their reasons are tainted by unacceptable prejudice and discrimination against daughters in favour of sons.

The Daughters relied on the case of Parkash and Singh et al, 2006 BCSC 1545 where the testator (the parties’ mother) had given $10,000 to each of her three daughters, and the residue of her estate was divided equally between her two sons. Based on the value of the estate at trial, the daughters received about 1.3% of the estate and the sons’ shares were about 48% ($366,240) each.  At trial, it was common ground that the main reason for the disparity in the gifts was the testator’s belief in her native Indo-Fijian tradition that the sons should inherit all of their parents’ estate to the exclusion of the daughters except for token amounts.  It was also common ground that the testator viewed the tradition as binding upon her testamentary choices, or at least highly influential. 

The Daughters stated the evidence supported the inference that the Parents’ reasons for the treatment of the Daughters in the Wills were impermissibly based on East Indian traditions and custom. Further, the Daughters stated that, as such traditional and cultural beliefs are unacceptable, and since there were and are no valid or rational reasons to substantially disinherit them, the Estate should be divided equally among the Siblings.

In her ruling, Madam Justice Adair ruled in favour of the Daughters varying the Will to divide the $9 million estate. Ultimately, the daughters received 15% of the estate each, whereby the sons’ received 20% each, respectively.

If this has happened with you, please let us know asap so we may assist with all your needs.

Please read more about Disinherited Daughters in your Estate Litigation section.

Some interesting citations from Madam Justice Adair’s judgment are as follows:

[139]     In Prakash, the testator (the parties’ mother) had given $10,000 to each of her three daughters, and the residue of her estate was divided equally between her two sons.  Based on the value of the estate at trial, the daughters received about 1.3% of the estate and the sons’ shares were about 48% ($366,240) each.  At trial, it was common ground that the main reason for the disparity in the gifts was the testator’s belief in her native Indo-Fijian tradition that the sons should inherit all of their parents’ estate to the exclusion of the daughters except for token amounts.  It was also common ground that the testator viewed the tradition as binding upon her testamentary choices, or at least highly influential.  

[140]     Rice J. ordered the testator’s will to be varied, writing (at paras. 57-59):

[57]      In terms of moral obligations, Mrs. Singh chose an option that fell short, that is, according to the moral norms of our Canadian society.  A variation is needed.

[58]      In modern Canada, where the rights of the individual and equality are protected by law, the norm is for daughters to have the same expectations as sons when it comes to sharing in their parents’ estates.  That the daughters in this case would have this expectation should not come as a surprise.  They have lived most of their lives, and their children have lived all of their lives, in Canada.

[59]      A tradition of leaving the lion’s share to the sons may work agreeably in other societies with other value systems that legitimize it, but in our society, such a disparity has no legitimate context.  It is bound to be unfair, and it runs afoul of the statute in this province.

[141]     Rice J. then turned to the question of how the estate should be divided.  He wrote, beginning at para. 61:

[61]      How much more the daughters should receive is another question.  The court will always wish to be most cautious not to rewrite the Will, and most reluctant to disregard the testator’s legitimate motives, especially where, as in this case, the claimants are independent adult children.

[62]      There was a rational and reasonable basis to favour the sons moderately regardless of Mrs. Singh’s tradition.  . . . These circumstances by no means rise to the level of Mrs. Singh’s predominant reason for her choices, her tradition, but they are compelling enough to recognize a measure of legitimacy in the Will.

[63]      Whether or not Mrs. Singh actually deliberated at all on the individual contributions is unknown, and the amount of variance needed to cure the inadequacy of the Will, and yet protect the testator’s legitimate motives, is impossible to determine with precision.  It requires a thoughtful consideration and balancing of what were the likely motives.

[64]      Whether more was due to one son than the other was not pled, and in my view, treating them as equally entitled was well within the discretion that ought to be the testator’s.

[65]      In weighing the evidence, I have concluded that the Will needs a substantial increase in the gifts to the plaintiffs to eliminate the effect of the discrimination, but not to the level of an equal distribution.

. . .

[67]      There will be no variation for the daughter, Roshni Kumar Singh, who has waived her claim to any more than $10,000.  She has received that sum.

[68]      Out of the balance, I award one-fifth to each plaintiff.

[69]      I award the residue equally between [the two sons].

[142]     The Daughters say that, though the Wills themselves are silent on the Parents’ underlying intentions in leaving an unequal distribution to them, it is readily inferable that the Parents’ testamentary intentions were based on traditional East Indian customs and practices.  These included marrying off their daughters (with a dowry), before dividing the estate (or most of it) between their sons.  The Daughters say that the Parents’ wish to adhere to East Indian customs and tradition falls far short of the moral standards of Canadian society, which provide for women and men to be treated equally.  The Daughters say that, as such, the only way to correct the injustice of the Wills is to vary them so that the Estate is divided equally among the Siblings.

[143]     The Daughters say that the following evidence supports the inference that the Parents’ reasons for the treatment of the Daughters in the Wills were impermissibly based on East Indian traditions and custom:

●        the differences in the treatment of and freedoms allowed to the Daughters compared to the Sons when the Siblings were growing up;

●        the historical context of the time and place of Nahar and Nihal and their lives in India, and their subsequent arrival into a new society in B.C. in 1964;

●        the Indian wills fully encapsulate and explain the Parents’ beliefs;

●        the applications signed by Nahar in the early 1990s concerning subdivision of the No. 6 Road Farm and the Cambie Farm, describing his reasons for requesting the subdivision;

●        evidence read in from Terry’s examination for discovery confirms in reference to daughters being married off and sons inheriting, that “That’s the tradition my parents believed, yes”; and

●        evidence from Mr. Girpal Birak (a business associate of Nahar), who, based on his conversations with Nahar, concluded that Nahar planned to leave his estate in accordance with traditional East Indian customs.

[144]     The Daughters say that, as such traditional and cultural beliefs are unacceptable, and since there were and are no valid or rational reasons to substantially disinherit them, the Estate should be divided equally among the Siblings.

…

[153]     I give little to no weight to the Indian wills.  There are too many inconsistencies with other reliable evidence.

[154]     I am not persuaded that, in making the Wills, the Parents considered themselves bound by East Indian cultural traditions, and I reject the argument that the Parents’ reasons for dividing the Estate in the way reflected in the Wills were driven solely by adherence to those traditions.  I agree with Mr. Lee’s submission that the Wills themselves – in particular, the gift to Amarjit, the daughter the Parents had disowned when the Wills were made – show the Parents did not consider themselves so bound.  Rather, in my view, the Parents’ reasons for dividing the Estate in the way reflected in the Wills are more complicated.  Assuming (as the Daughters ask me to do) that the Parents felt bound by East Indian cultural tradition to divide the Estate in a particular way itself reflects stereotypical thinking about what “traditional” East Indian parents would do.  I also agree with Mr. Lee’s submission that, for Nihal in particular, a cash gift of $150,000 is likely to have seemed a very substantial sum.  It was Nihal who was not open to changing the Wills when Terry raised it with the Parents.  Nahar, on the other hand, was.  This evidence is incompatible with the conclusion that the Parents felt themselves bound by culture to divide the Estate in a way that effectively disinherited the Daughters.

[155]     On the other hand, looking at the whole of the evidence, I have concluded that traditional cultural values had some influence on the Parents in how they treated the Siblings, both when the Parents were alive and in the Wills.  Although Kasar did not fare as well as Terry and often clashed with Nahar over money, in the Litt family, there was never equality of treatment between the Sons and the Daughters.

[156]     Given the size of the Estate, there can be a significant increase in the size of the gifts to the Daughters, without repudiating altogether the Parents’ testamentary autonomy.  In my view, equal division of the Estate is not the only fair result.