Lam v Law Estate — BC Wills Variation and Gender-Based Disinheritance

Lam v Law Estate, 2024 BCSC 1561, is a recent British Columbia Supreme Court decision applying WESA section 60 wills variation to a case involving gender-based preferential treatment of a son over a daughter. The case continues the development of Canadian wills variation jurisprudence in the Tataryn tradition.

Case citation #

Lam v Law Estate, 2024 BCSC 1561 (Supreme Court of British Columbia)

Available on CanLII.

The facts #

The 1999 mirror Wills #

The mother (Law) and her spouse made mirror Wills in 1999. Standard pattern:

• Each spouse left their estate to the surviving spouse
• Upon the surviving spouse's death, the estate would be divided equally between the two children — William (the son) and Ginny (the daughter)

This is a typical equal-treatment Will structure used by many Canadian couples.

The 2004 change #

Several years later, after her husband's death, the mother made a new Will:

• William appointed as sole executor
• Ginny to receive a specific gift of $2,000
• The residue of the estate (substantially everything else) to William

This represented a dramatic shift from the prior equal distribution. Around the same time, the mother also placed the family home into joint ownership with William.

The 2018 Will, the death, and the challenge #

In January 2018, the mother made her third and final Will. It gave the family home to William absolutely and split her remaining asset — a rental property on East 18th Avenue in Vancouver — equally between William and Ginny, and named both children as co-executors. On its face this looked more balanced than the 2004 Will, but by then the large majority of the mother's wealth had already passed to William through lifetime gifts, joint ownership, and shares of property sale proceeds — transfers Ginny valued at roughly $2.5 million, against approximately $170,000 in gifts to her.

After the mother's death in 2021, Ginny challenged the 2018 Will under WESA section 60, arguing that — viewed against those lifetime transfers — it failed to make adequate provision for her.

The evidence #

Ginny's testimony was central. As the court put it in accepting her evidence:

"I accept Ginny's forthright and clear evidence that her mother told her again and again, in casual conversations over the years, that William was entitled to the estate assets, and that he would inherit most of her estate because he is the son."

This evidence painted a picture of preferential treatment rooted in gender-based cultural preference — the son inheriting because of his gender, regardless of the daughter's claims. The court found that the mother held the view that sons, rather than daughters, were entitled to most or all of a parent's estate, and that this bias shaped both her lifetime gifts and her 2018 Will.

The decision examined whether such preferential treatment, rooted in tradition, could survive scrutiny under contemporary Canadian wills variation law.

The legal framework — WESA section 60 #

Section 60 of BC's Wills, Estates and Succession Act provides:

If a will-maker dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker's estate for the spouse or children.

Standing — broader than other provinces #

Unlike most Canadian provinces, BC's section 60 extends standing to:

• Spouse (legal and common-law)
• Children (minor and adult, dependent and independent)

This is the distinctive BC framework. In Ontario, by contrast, only actual dependants can claim — independent adult children cannot.

The Tataryn principles #

The leading case interpreting BC's wills variation framework (under the prior Wills Variation Act, but principles continue under WESA) is Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC).

Tataryn established that "adequate, just and equitable" provision includes:

• Legal obligation — what the will-maker had legal duty to provide
• Moral obligation — what a "reasonable spouse and parent" would do

The moral obligation analysis is what gives BC's framework its distinctive scope. Adult independent children can claim moral obligation even where there's no legal obligation to support them.

The outcome #

The court varied the 2018 Will, awarding Ginny 85% of the East 18th Avenue rental property (William receiving 15%). The judge concluded that the distribution set out in the 2018 Will, assessed in light of the surrounding circumstances — including the lifetime gifts to William — was "not acceptable by contemporary societal standards" and therefore not adequate, just or equitable. At the same time, the court declined to strip William of his interest entirely, noting he had been a dedicated and helpful son.

What this case demonstrates #

Cultural preference vs Canadian law #

The case shows that cultural tradition favouring sons over daughters in inheritance does not automatically override Canadian wills variation principles. A will reflecting such preference may be varied if the daughter has legitimate moral claims — and in Lam, it was.

Evidence of intent matters #

Ginny's testimony about her mother's repeated statements about William's entitlement "because he is the son" was significant. Courts in wills variation cases examine the testator's motivations and the family relationships to assess whether the disposition reflects reasonable provision or unjustified preferential treatment.

Building on Tataryn #

The case continues the line of BC decisions applying Tataryn principles to specific factual scenarios. Recent BC wills variation cases have addressed:

• Gender-based preference (Lam being a recent example)
• Cultural inheritance traditions
• Long-term relationships and contribution to family assets
• Specific to family dynamics and history

Contrast with Ontario #

The Lam scenario would have a different trajectory in Ontario:

Ontario (under Spence v. BMO Trust and SLRA Part V):

• Verolin Spence couldn't successfully challenge her racially-motivated disinheritance because she wasn't a dependant
• Public policy doctrine doesn't apply to private testamentary dispositions
• Ginny in Ontario would likely fail in a similar challenge (she's an independent adult)

BC (under WESA Part 4 and Tataryn):

• Independent adult children have standing
• "Moral obligation" considerations apply
• Gender-based preference may not survive scrutiny

This stark contrast between Ontario and BC continues to shape estate planning across Canada.

See Spence v. BMO Trust disinheritance for the Ontario contrast.

Practical implications #

For BC testators #

Disinheriting an adult child requires defensible reasons. Even adult children with independent means can challenge under section 60. Cultural tradition or gender preference alone is unlikely to be sufficient justification.

If you intend disproportionate treatment among children:

• Document the reasoning carefully
• Consider a letter of wishes explaining the rationale
• Engage independent legal advice
• Anticipate possible variation
• Specific to circumstances

Common defensible reasons that may withstand variation:

• Significant inter vivos gifts to one child (equalization)
• Care provided to the testator by one child
• Specific assets serving specific children's needs
• Estrangement with documented history
• Specific to circumstances

For BC adult children considering challenge #

Time-sensitive — typically 180 days from grant of probate to commence under WESA section 61.

Evidence-based — your case rests on the testator's intent, family circumstances, and the moral and legal obligations.

Legal consultation — wills variation litigation is specialized. BC has a number of practitioners with specific WESA Part 4 experience.

For testators in other provinces #

If you've moved to BC from another province (especially Ontario), be aware that the wills variation framework here is significantly more flexible. Your Will from another province may be valid in BC but may face challenges that wouldn't have been possible under your prior province's law.

See moving provinces — update your Will.

What we focus on at It's Simple Will #

The Will Creator accommodates BC Wills with various distribution structures. For BC testators considering disinheritance or significant disproportionate treatment among children, awareness of the WESA Part 4 framework and Tataryn principles is important. Lawyer consultation for unusual provisions is appropriate.

Related guides #

• Dependant relief Canada
• Tataryn v. Tataryn
• Spence v. BMO Trust Company
• Section 58 of WESA (BC)
• Wills religious cultural practices
• No-contest clauses Canada