Property Division Between Two Brothers - Zukerman Law

Division of Property Between Brothers in British Columbia: A Legal Overview

Inheritance matters can be complex, especially when navigating the legal landscape within a specific province. In British Columbia, while blood ties hold weight, the division of property between brothers can sometimes be a more complex sibling-to-sibling split. This blog post delves into the legal considerations surrounding property division between brothers in BC. We’ll explore how factors like wills, intestacy laws, and the involvement of spouses or children can influence the distribution process. Whether you’re planning for the future or facing a situation currently, gaining a clear understanding of your rights and options can ensure a smoother and more transparent outcome.

When a Will Dictates Property Division Between Brothers

When a Will Dictates Property Division Between Brothers

A valid will significantly impact how property is divided between brothers in BC. WESA, the Wills, Estates, and Succession Act, grants the will-maker (the deceased) “testamentary autonomy.” This means they can decide who inherits their assets, including siblings.

However, this freedom isn’t limitless. The court can intervene if the will fails to provide for the “proper maintenance and support” of a spouse or dependent children (usually biological or adopted). Under Section 60 of WESA, the court considers various factors when deciding if a will should be altered, including:

  • The Relationship Between the Deceased and Claimant: A strong, positive relationship between a brother and the deceased would favour the brother receiving a fair share.
  • Size of the Estate: The larger the estate, the more likely the court might adjust the distribution to ensure some inheritance for a neglected brother, especially if there’s a demonstrable need.
  • Contributions Made by the Claimant: Did the brother contribute financially or in other ways to the deceased’s well-being? Such contributions could strengthen an inheritance claim.
  • Financial Needs of the Claimant: A brother facing financial hardship might be more likely to receive a portion of the estate if the will left them nothing.
  • Misconduct or Poor Character: If a brother has a history of wrongdoings towards the deceased, it would weaken their claim on the estate.

Even with a will, the court can ensure a somewhat fair outcome for a brother if certain circumstances warrant it. In the next section, we’ll explore what happens without a will.

When There's No Will: Intestacy and Brotherly Inheritance

When There’s No Will: Intestacy and Brotherly Inheritance

The absence of a will triggers a different set of rules for property division. British Columbia’s intestacy laws, outlined in WESA, dictate how the estate is distributed when there is no will to guide the process. These laws prioritize surviving spouses and descendants (children and grandchildren) first.

If a spouse has no descendants, the spouse inherits the entire estate. The spouse receives a guaranteed portion of the estate, the amount varying depending on whether the children are also biologically theirs.  The remaining estate is then split equally among the children.

Siblings come into the picture only in the absence of a spouse and descendants.

In this scenario, the estate is divided equally amongst surviving brothers. However, it’s important to remember that half-siblings are treated differently under intestacy laws. They would only inherit if they share one parent with the deceased and there are no full siblings. The presence of other relatives, like parents or grandparents, can further complicate the inheritance picture when there’s no will.

Dividing Your Estate Unequally? Understanding BC's Inheritance Rules

Dividing Your Estate Unequally? Understanding BC’s Inheritance Rules

Through a will, you can decide how your property is distributed. This includes leaving more than 50% to one child. However, it’s important to be aware of potential challenges.

When a Sibling Disagrees

The child receiving less under the will can contest it in court, aiming for a larger estate share. The court’s decision will hinge on several factors:

  • Size of the Difference: A significant disparity in inheritance amounts between siblings is more likely to be challenged.
  • Your Reasons for Unequal Distribution: A clear explanation of your will for favoring one child (e.g., providing care for you) strengthens your case.
  • Tax and Trust Considerations: Complexities around taxes and trusts within the estate can influence the court’s decision.

A Recent BC Court Case

The Court of Appeal case Tom v Tang (2023 BCCA 221) exemplifies this scenario. Here’s a breakdown:

  • Unequal Distribution: A mother left 85% of her estate to 2 children who cared for her and 5% each to the remaining 3.
  • Challenge by Disgruntled Children: The 3 children receiving less contested the will.
  • Mother’s Reasoning: An earlier version will split the estate equally, but a revised version will favor the caregivers.
  • Estate Value: The total estate was worth roughly $2.3 million, with a Vancouver home being the primary asset.
  • Court’s Decision: The court awarded 30% each to the caregiving children and divided the remaining 40% equally among the other siblings.

Favoring one child in your will is permissible, providing a clear justification and considering potential tax implications can help minimize the risk of challenges from other beneficiaries.

Bottom Line

Losing a parent is a difficult time, and the last thing you want to deal with is inheritance disagreements. Unfortunately, disputes between siblings over who gets what are quite common. This can happen when a sibling feels they received an unfair share of the estate, especially if a large portion goes to someone else, like a stepparent in a blended family.

While legal battles aren’t ideal, sometimes seeking legal guidance is necessary to protect your inheritance rights. If you find yourself in a disagreement with family members over the estate, consider consulting Zukerman Law. We can provide expert advice and help you navigate the legalities of inheritance, ensuring a smoother and more amicable resolution.


Stuart Zukerman

Stuart Zukerman, a graduate of the University of British Columbia, has over 32 years of experience in litigation with a focus on Family Law, Personal Injury, Wrongful Dismissal claims, and Collaborative Divorce & Mediation. He has extensive trial experience in divorce, child custody, spousal support, asset division, and ICBC injury claims. As an accredited Family Law Mediator, he helps resolve disputes without court intervention. Stuart has also authored papers on family law and lectured at CLE courses.