Focus On

WILLS - Variation - Contestation of claims

Friday, September 20, 2019 @ 6:20 AM  


Lexis Advance® Quicklaw®
Action by the plaintiff daughters seeking to vary their parents' wills to provide for an equal distribution among the parents' six children. Counterclaim by son Kasar for $400,00 in damages in unjust enrichment against the parents' estate. The family emigrated from India in 1964. In 1993, the parents executed mirror wills that left everything to one another and on the passing of both, their estates were to be divided among their six children. Each of their four daughters was to receive $150,000 in cash and the residue was to be divided equally between the two sons. Both parents died in 2016. The combined value of the estates was $9 million from the sale of the parents' home and farm property. All the children worked on the farm growing up. Kasar claimed for improvements he made to the farm once he returned to farming as an adult. He received the profits from his farming and did not pay rent for use of the land during the 20-year period he farmed it. All the children owned property and were financially independent.

HELD: Action allowed in part; counterclaim dismissed. Even if the estate benefited from Kasar's efforts and he suffered a corresponding deprivation, the benefits he received in farming the land rent-free provided a juristic reason for the unjust enrichment. Kasar failed to establish he was entitled to a remedy for unjust enrichment. Their wills failed to make adequate provision to satisfy the parents' moral obligation to their daughters. Traditional cultural values had some influence on the parents in how they treated the children. Given the size of the estate, the size of the gifts to the daughters could be significantly increased without repudiating altogether the parents' testamentary autonomy. An equal division of the estate was not the only fair result. A provision that was adequate, just and equitable was to divide the estate 60 per cent in favour of the daughters and 40 per cent in favour of the sons. The daughters' share was to be divided equally among the four of them. The sons' share was to be divided equally among the two of them.

Grewal v. Litt Estate, [2019] B.C.J. No. 1327, British Columbia Supreme Court, E.J. Adair J., July 17, 2019. Digest No. TLD-September162019013