Property Division Between Son And Daughter (Siblings) - Zukerman Law

Inheriting in British Columbia: A Guide to Sibling Property Division After a Parent’s Death

The loss of a parent is a deeply emotional experience. During grief, navigating the legalities of inheritance can add another layer of complexity. This guide focuses on sibling property division in British Columbia (BC) after a parent’s death.
Understanding BC inheritance laws is crucial if your parents have a will clearly outlining their wishes or you’re facing an intestacy situation (where no will exists). This guide will equip you with the knowledge to approach property division more clearly and confidently. We’ll explore how wills and intestacy laws impact sibling inheritance, dispute resolution options, and the importance of clear communication throughout the process. Understanding your rights and options allows you to navigate this important stage with a sense of fairness and respect for your loved one’s wishes.

Property Division Between Son and Daughter: When a Will Takes the Wheel

Property Division Between Son and Daughter: When a Will Takes the Wheel

In British Columbia, the Wills, Estates, and Succession Act (WESA) gives parents testamentary autonomy, meaning the freedom to decide how their property is divided after death through a will.
This section explores what happens when a will dictates property division between a son and daughter:

Parental Choice

A parent has the legal right to specify how they want their assets distributed in their will. They can choose to:

  • Divide the estate equally between their son and daughter.
  • Leave a larger share to one child, considering factors like education costs, financial needs, or contributions made during their lifetime.
  • Disinherit a child altogether, although providing a clear explanation in the will is highly recommended to minimize potential disputes.

Following the Will’s Provisions

When a valid will exists, BC courts prioritize the deceased’s wishes. This means the estate will be divided according to the instructions outlined in the will. A clear and well-written will that specifies how assets are to be divided between your son and daughter can help ensure a smooth and respectful inheritance process.

What if the Will is Unclear?

If the will’s wording is ambiguous or subject to interpretation, it could lead to disputes between siblings. In such cases, seeking legal guidance from a lawyer specializing in estate law is crucial. They can help interpret the will’s provisions and mediate conflicts between your son and daughter.

Navigating Intestacy: When There's No Will to Guide the Way

Navigating Intestacy: When There’s No Will to Guide the Way

As we’ve explored, a will allows your parents to personalize their estate plan and ensure their wishes regarding property division between siblings are followed. However, what happens if no will exists? This scenario falls under intestacy.

BC’s Intestacy Laws

BC’s Wills, Estates, and Succession Act (WESA) outlines a default distribution plan for estates where there’s no will. Here’s a breakdown of how intestacy laws typically apply:

  • Spouses and Children: If your parents were married and had children together, the estate will generally be divided as follows:
    • The surviving spouse inherits the first $350,000 of the estate, plus all household furnishings and personal effects.
    • The remaining estate is then divided equally among the surviving children.
  • No Spouse, But Children Survive: If one parent dies without a spouse but has surviving children, the entire estate will be divided equally among the children.
  • More Complex Situations: Intestacy laws become more intricate when there’s a surviving common-law partner, parents of the deceased, or no spouse or children. In such cases, consulting a lawyer specializing in estate law is highly recommended to understand how the specific circumstances will impact inheritance.

Challenges of Intestacy

While intestacy laws provide a framework, they may not always reflect your parents’ true wishes for their estate. This can lead to:

  • Unintended Distribution: Assets may be distributed in ways your parents wouldn’t have preferred.
  • Family Conflict: Disputes can arise among siblings if they disagree with the intestate distribution.
  • Delays and Additional Costs: The intestacy process can be more time-consuming and expensive than having a clear will.

By understanding both wills and intestacy, you’ll be better equipped to navigate property division after a parent’s death, whether there’s a will in place or not.

The BC Court's View on Unequal Inheritance

The BC Court’s View on Unequal Inheritance

While wills often ensure a fair division of the estate, situations arise where a parent leaves a larger share to one child or children over others. This can lead to disputes, particularly if the reasons for the unequal distribution need to be clarified.
A recent case, Tom v Tang (2023 BCCA 221), illuminates the BC Court of Appeal’s approach to such situations.
Ms. Tom bequeathed approximately 85% of her $2.3 million estate to two of her five children. The remaining three children received only about 5% each. The primary asset was a valuable Vancouver home worth $1.7 million.
Ms. Tom’s original will divided her estate equally among all five children. However, shortly before passing, she changed her will to favor the two children who provided her with primary care during her final three years.
The Court of Appeal acknowledged Ms. Tom’s right to alter her will. However, they also considered the significant shift in distribution from the original equal division. Ultimately, the court ruled in favor of a more balanced approach:

  • The two children who provided care received 30% each of the estate.
  • The remaining three children shared the remaining 40% equally.

If you’re concerned about a potential inheritance dispute with siblings, understanding the BC Court’s approach to unequal inheritance can be helpful. It’s also a good reminder for parents to clearly express their reasons for unequal distribution in their wills to minimize potential conflict.

Bottom Line

Inheritance can be a complex and emotional experience, especially when navigating sibling property division in British Columbia. This guide has taught you valuable knowledge of wills, intestacy, and the BC Court’s perspective on unequal inheritance.
Remember, clear communication and a well-crafted will can minimize the risk of disputes. If you have questions or require legal guidance with estate planning or inheritance matters, consider contacting the highly experienced lawyers at Zukerman Law. Our team can help meet your wishes and protect your loved ones during this important time.

author

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.