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Balancing fairness with religious and cultural customs in estates

This article discusses balancing religious/cultural customs and the law regarding inheritances given to sons and daughters and finding support when needed.

Undoubtedly, Canada has a diverse population. People from all backgrounds and lifestyles live, work, play and die here. They bring with them vibrant cultural and religious beliefs that serve to enrich the lives of communities across the country, including those here in British Columbia.

However, when it comes to estate planning, those with certain religious and cultural beliefs may need to find a way to balance the fairness required under the law here in British Columbia and their customs. Otherwise, their heirs and beneficiaries could end up in a contentious court battle over who receives how much of a parent's estate.

Following tradition may not stand up in court

The law requires equality between men and women. To that end, the province requires its residents to abide by the British Columbia's Wills Estates and Succession Act. For instance, parents might try to disinherit a child under certain limited circumstances, such as estrangement, a dispute or some other similar circumstance. Even with a seemingly valid reason for not providing a child an inheritance, the law may allow that child to challenge the will and receive a portion of the estate.

Parents cannot disinherit a child or give one child a substantially unfair inheritance due to religious or cultural tenets alone. A British Columbia Supreme Court recently adjusted inheritance percentages when four sisters objected to their parents' wills. Their two brothers were to split approximately 93% of an estate worth around $6.8 million (U.S. dollars), while the women were to split just 1.7%. The court agreed that since there was no specific reason, such as those mentioned above, for not giving them more equal shares, they were entitled to an adjustment.

Balancing tradition versus the law

Families wanting to abide by their traditions and the law may employ numerous mechanisms designed to satisfy both. For example, a parent could create a substantial debt to a daughter who would not otherwise receive a fair inheritance under religious or cultural traditions. One hour prior to the death of the parent, the debt becomes due. The only way for the inheriting son to avoid paying the debt is to give his sister an equitable share of the inheritance. Once done, the debt ceases to exist.

There is often a delicate balance between tradition and certain legalities. In order to avoid leaving children with no choice but to end up in a contentious court battle, parents may want to consult with an estate planning lawyer with experience in helping marry the needs of the family's traditions with the law.

A child's rights under WESA

If a child's parents failed to account for the law regarding fairness and equality between the sexes in their estate plans, it may be possible to challenge the will in court. Even though this might go against cultural and religious norms, it should not necessarily keep an individual from exercising his or her rights under the law. Securing the services of a lawyer experienced with estate litigation could increase one's odds of achieving the best possible outcome should a similar situation arise.

It may be possible to find a compromise between the law and the family's religious or cultural customs. For example, in the case of the sisters above, the court still gave their brothers slightly higher percentages of the estate as a nod to the family's traditions.