Should I Give Each Child an Equal Inheritance in BC?

While BC law allows you to distribute your estate unequally among your children, such decisions may face legal challenges. Courts apply the “judicious parent” standard to evaluate if your distribution provides adequate provisions for all children. Documenting your rationale for unequal inheritance can strengthen your position, but does not guarantee protection against contests. Professional legal guidance, family discussions, and clear communication are essential when considering unequal distributions. The following insights will help you navigate this complex decision effectively.

Understanding Equal vs. Unequal Inheritance in British Columbia

While many people assume that children must inherit equally from their parents in British Columbia, the law actually gives will-makers significant freedom to distribute their assets as they see fit.

You can legally leave more to one child than others, even allocating the majority of your estate to a single beneficiary.

However, this freedom is not absolute. BC courts can intervene if they determine your distribution fails to make “adequate provision” for your children.

The law provides testamentary freedom, but BC courts maintain authority to modify wills failing to adequately provide for children.

As seen in Tom v Tang (2023), where a mother left 85% to two caregiving children and 5% each to three others, the court may adjust distributions they find unreasonable.

If you are considering unequal inheritance, it is advisable to clearly document your reasoning within the will itself, though this won’t necessarily prevent successful challenges.

Legal Rights of Will-Makers to Distribute Property Unequally

Although many assume inheritance must be equal, British Columbia law grants will-makers substantial freedom to distribute their property as they see fit.

You can legally allocate more than 50% of your estate to one child while giving less to others.

However, this freedom is not absolute. While you can create an unequal distribution, disinherited or disadvantaged children may challenge your will after your death under BC’s wills variation provisions.

Courts evaluate these challenges based on the “judicious parent” standard, considering your moral duties balanced against any justifiable reasons for the disparity.

To strengthen your unequal distribution plan, clearly document your reasoning in your will.

The court will examine the size of the disparity, your stated rationale, and whether your decisions reflect a reasonable will-maker’s judgment.

Moral Obligations to Adult Children Under BC Law

Despite the considerable freedom BC law grants to will-makers, courts recognize that parents maintain certain moral obligations to their adult children when distributing their estate. The concept of a “judicious parent” serves as the legal standard when evaluating whether these obligations have been met.

Courts assess each case individually, weighing factors such as the care provided by children, financial need, and the parent’s expressed intentions. In Tom v Tang (2023), the court adjusted an 85/15 split to a more balanced distribution despite the will-maker’s explanation for her decision.

While you are not legally required to distribute your estate equally, significant disparities without just cause may invite successful challenges.

Providing clear reasons in your will helps, but does not guarantee your wishes will be upheld if the court finds your distribution unreasonably disproportionate.

The “Judicious Parent” Standard in Estate Distribution

The “judicious parent” standard forms the backbone of how BC courts evaluate contested wills between children. When evaluating unequal distributions, courts consider what a fair-minded parent would do in similar circumstances.

This standard is not about enforcing equal shares but ensuring reasonable provisions based on each child’s relationship with the parent, contributions to care, and individual needs.

In Tom v Tang, despite the mother’s clear intentions to favour children who provided care, the court adjusted the distribution to better balance moral obligations.

If you are considering an unequal distribution, document your reasoning thoroughly. However, understand that your explanations may be evaluated against this standard.

Courts won’t automatically uphold your wishes if they determine a judicious parent would have made different provisions for their children.

Documenting Your Rationale for Unequal Inheritance

When planning an unequal inheritance in your will, documenting your reasoning is not just recommended—it is essential for protecting your intentions.

As illustrated in the Tom v Tang case, even with documented explanations, courts may still modify distributions they deem unreasonable.

Create a detailed letter or include specific language in your will that explains why you have chosen unequal distribution. Reference concrete examples of care provided, financial support given, or other valid considerations that influenced your decision.

When dividing your estate unequally, document specific caregiving instances, financial support, and other concrete factors that justify your decision.

Be factual rather than emotional.

Remember that documentation alone is not bulletproof. The court will evaluate whether your reasoning meets the “judicious parent” standard.

In British Columbia, even well-documented rationales may be challenged successfully if the disparity seems excessive relative to the circumstances—as seen when Mrs. Tom’s 85/15 split was adjusted despite her written explanations.

How Courts Evaluate Challenges to Unequal Distributions

British Columbia courts apply specific criteria when evaluating challenges to unequal inheritance distributions. They assess whether a “judicious parent” would have made the same decision, considering their moral duty to each child and if there is just cause for unequal treatment.

In Tom v Tang (2023), the court examined a will that gave 85% to two caregiving children and just 5% each to three others. Despite the will-maker’s documented rationale, the court adjusted the distribution to 30% each for the caregivers and 40% split among the others.

When reviewing challenges, courts consider several factors: the size of the disparity, reasons for unequal distribution, evidence of care provided, and legitimate expectations of beneficiaries.

Your explanation in the will matters but is not definitive.

Lessons From the Tom V Tang Case

Although numerous lessons emerge from the Tom v Tang case, perhaps the most significant is that documenting your intentions does not guarantee your wishes will be upheld after death.

Despite Mrs. Tom’s clear explanation for favouring her caregiving children, the court still adjusted the distribution to what it deemed more appropriate.

This case demonstrates that courts will consider both the explanation for unequal distribution and its proportionality. Even when valid reasons exist for preferential treatment, extreme disparities may be modified.

The court acknowledged the caring children deserved more but reduced their share from 85% to 60% of the estate.

When planning your estate, consider that documentation alone is not sufficient—the perceived fairness of your distribution may ultimately determine whether your wishes stand unchallenged.

Strategies for Minimizing Family Disputes Over Your Estate

Given the contentious nature of unequal inheritances, implementing strategic planning can greatly reduce the risk of disputes among your children after you are gone. By taking proactive measures, you will establish clear expectations and minimize confusion when your estate is distributed.

Strategy	Purpose	Effect
Family discussion	Transparency	Prevents shock and misunderstandings
Detailed explanations	Clarification	Documents your reasoning for distribution
Independent trustee	Neutrality	Reduces perceived favoritism

Consider creating a memorandum alongside your will that explains your decisions but is not legally binding. This provides context without restricting your ability to change distributions later. You might also consider giving lifetime gifts, which can equalize resources while allowing you to witness their benefits.

How Vest Estate Lawyers Can Help

Inheritance disputes require specialized legal expertise that Vest Estate Lawyers provide through their focused practice in wills and estates law.

Their team of dedicated professionals across Alberta and BC can guide you through challenging inheritance questions, whether you are creating a will with unequal distributions or considering contesting one.

When planning your estate, Vest’s lawyers can help you draft a thorough will that clearly explains your intentions, potentially reducing successful challenges.

If you are facing an inheritance dispute, they will assess your case’s merits, explore settlement options, and represent you in court if necessary.

Frequently Asked Questions

How Do Step-Children Factor Into Inheritance Considerations in BC?

Step-children are not automatic legal heirs in BC. You can include them in your will, but they do not have the same legal standing to challenge unequal distributions as biological children do.

Can I Disinherit a Child Who Is Financially Independent?

You can disinherit a financially independent child in BC, but they may challenge your will. Consider explaining your reasons clearly and consulting an estate lawyer to strengthen your position.

Do Gifts Made During My Lifetime Affect Inheritance Equality?

Yes, lifetime gifts impact inheritance equality. You’ll need to track these gifts if you want true equality among children, as they effectively serve as advance payments from your estate.

Are There Tax Advantages to Unequal Inheritance Distributions?

There aren’t specific tax advantages to unequal distributions. Your estate pays the same taxes regardless of how you divide assets. However, you might consider each child’s individual tax situation when planning.

Can a Child Contest a Will if They Received Lifetime Support?

Yes, you can still contest a will even if you have received lifetime support. However, courts will consider this previous support when evaluating the fairness of your inheritance claim.

Conclusion

In BC, your right to distribute your estate unequally comes with significant caveats. Courts can override your wishes based on moral obligations to your children using the “judicious parent” standard. To protect your intentions, clearly document your rationale for any unequal distributions and consider discussing your plans with family. Professional estate planning guidance can help guarantee your decisions stand while minimizing potential family conflict after you’re gone.