Tuesday, October 24, 2006

Wills Variation Act: Moral Obligations in a Multicultural Society

In deciding a claim in British Columbia by a child or spouse to vary a will under the Wills Variation Act, RSBC 1996, c. 490, the courts consider the testator's legal and moral obligations to the claimant. These moral obligations or norms "are found in society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards." (Per McLachlin J. (now C.J.C.) in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. For a further discussion of Tataryn see this post.)

But in a multicultural society with people from many different cultural traditions, with different values and ideas about inheritance, what are "society's reasonable expectations?" Once the testator has met his or her legal obligations, should the testator's moral obligations be measured by his or her own culture's norms, or are there some broader norms?

This issue arose in a decision released earlier this week.

In Prakash and Singh v. Singh, 2006 BCSC 1545, the testator, Saraswati Singh, had left each of her three daughters $10,000 out of an estate worth, at the time of trial, about $763,000. She left the residue of her estate equally to her two sons.

The trial judge, Mr. Justice Rice, found that "[t]he Singh family has its roots in the Indo-Fijian culture, a culture of long standing and honoured family traditions. Several witnesses testified, and the parties agreed, that one of those traditions is that sons and not daughters should inherit the bulk of their parents’ estates. " Furthermore, " it was common ground that Mrs. Singh viewed the tradition as binding upon her testamentary choices, or at least highly influential. It seems that the children knew of the Will and were aware of their mother’s plans."

Two of the three daughters made claims under the Wills Variation Act for a greater share of their mother's estate. The other daughter accepted her $10,000.

Mr. Justice Rice found that all of the children were independent adults to whom Mrs. Singh did not owe a legal obligation. The issues were whether she met her moral obligations to her daughters, and, if not, what provision the court should make to the claimants.

The court held that Mrs. Singh's moral obligations could not be measured by her cultural traditions. Mr. Justice Rice said,

[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.
But, Mr. Justice Rice did not award the daughters an equal share.

[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.
The court awarded the two daughters who were making the claim two-fifths of the residue of the estate, and the sons kept three-fifths. In reaching this conclusion, Mr. Justice Rice took into consideration the fact that the sons had helped their parents with the mortgage, and one of the sons had taken their mother to live with him. He found that there was a rational and reasonable basis for Mrs. Singh to favour her sons, apart from the tradition in her culture to leave the most of the wealth to sons.

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