Should Each Child Get Equal Inheritance in BC?
Equal inheritance is when the children of the will-maker inherit an equal amount of assets from the estate. Many assume that their inheritance will be equal by default, and are often surprised to find they’ve received a lesser share than another sibling. Would this be a case of an unfair will worthy of being challenged? Or are will-makers free to distribute their assets as they wish, regardless of what’s fair? We answer that and more in this article. Keep reading to understand more about British Columbia inheritance law and the legality of unequal inheritance.
This article contains general information and is not legal advice. For qualified legal advice, please contact us to get in touch with a British Columbia Estate Lawyer.
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BC Inheritance Law
The guidelines for inheritance are outlined in the Wills, Estates, and Succession Act (WESA). It states that, if applicable, the spouse receives half of the estate, and the other half is distributed equally between descendants.
This is an oversimplification of how it works, as distribution can vary in many cases based on family dynamics and other unique circumstances. But generally, the estate will be distributed like this when someone dies without a will.
So what happens when there’s a valid will? The default rules for WESA don’t apply.
Once a will is drafted, the will-maker’s testamentary freedom (their right to choose how their assets are distributed) takes precedence. Assets will be distributed according to the instructions in the will. However, the court still holds the authority to change the will
Does Inheritance Have to Be Equal?
No, parents are not legally required to give equal inheritance to their children, nor are their children entitled to equal share. Parents are legally permitted to give more than 50% of the estate to one child and less to the others.
However, this doesn’t mean the will can’t be contested or challenged. If the distribution is unreasonable, or some descendants are not adequately provided for, the court may decide to vary the will.
The will must contain valid reasoning for why the inheritance is unfair in order to reduce the likelihood of having the will varied by the court. That being said, having solid reasoning doesn’t guarantee the will won’t be changed.
What to Do About Unequal Inheritance
If you’re a child who did not receive equal inheritance, you have the right to contest the will. If you do plan to contest the will, you must do so within 180 days after the will was probated.
In a will contest, the court mainly considers your parent’s legal, moral, and financial obligations to you, part of which involves providing for you adequately through the will. Keep in mind that there is no guarantee that the court will vary the will, even if you have a strong case.
Reach out to our team of British Columbia estate lawyers for expert advice on the strength of your case and how to proceed with a contest.
Book a no-obligation consultation or call us at 604-876-7000.
Reasons for Unequal Inheritance
Here are some reasons why a parent might choose to give unequal inheritance:
- Financial Need: If a child has a greater financial need for the inheritance than their siblings, a parent could choose to give them a larger share of the estate. The court considers aspects like financial need when varying a will.
- Caregiving Children: If one child was the parent’s main caregiver during the late stages of their life, the parent may choose to give them a larger share of the estate in return. The court will consider caregiving as a major factor during estate disputes.
- Estate Contributions: If one child has contributed to the estate in some way (working for the family business, renovating the family home) then the parent may give them a larger share of the estate to reflect their contributions. This is known as a financial obligation, and the court will consider estate contributions made by a descendent during will disputes.
- Better Relationships: A parent might choose to give a larger share to the child they have a better relationship with. This type of distribution is not always valid, especially when the other children get an unreasonable share or are disinherited completely. In cases of estrangement where the child is at fault, the court may have reason to uphold a disinheritance.
- Past Financial Support: If a parent has already provided significant financial support to one child during their lifetime, then they may choose to prioritize their other children for inheritance. Additionally, inter vivos gifts will be considered by the court during estate disputes.
Risks of Unequal Inheritance
While not illegal, there are some consequences that can arise from unequal inheritance.
Unequal inheritance can make the will highly vulnerable to being contested and potentially varied by the court. Even if the will contains valid reasoning for uneven distribution, that won’t prevent the court from adjusting the distribution in a will contest case.
It can also lead to family conflict. Unequal estate distributions often build resentment and mistrust between siblings. It may have a long-term effect on their relationships with each other.