From a legal viewpoint, Ontario law and most common law jurisdictions
provide for testamentary freedom, and you are free to treat your children
unequally. Financially-dependent children can, however, have a claim for
support in certain limited cases.
Let me start out with the observation that in my experience, almost all
parents share the view that their children should be treated equally under
their wills. Many are punctilious to the nth degree about this rule and
right down to the last penny, particularly where some of their children may
already have received financial assistance during their lifetimes, and
under their wills parents wish to include provisions to equalize them. The
notion of complete formal equality has often been a core value for them as
parents, dating right back to making sure each child got the exact same
size of that piece of apple pie. They know innately that to avoid disputes,
equality is one line of defence.
From a cultural perspective, much has changed. If I were a trust and estate
lawyer in 1940, there might have been a disproportion between sons and
daughters, and if I were one in the nineteenth century, perhaps the eldest
son would have been favoured. Having said that, traditional domestic
approaches are being challenged by global mobility, and many clients with
diverse religious and cultural backgrounds have different values and
approaches to family inheritance and treatment of children.
Unequal treatment can lead to rifts
Not all parents may share the notion of equal treatment. Some may see
giving one child more as being fair, and perhaps as a way to reward them
for extra work and effort: “Heather has been helping me out since I had my
stroke – I don’t know what I would do without her, and I have decided to
leave her more than her two brothers.”
In other situations, unequal treatment can be used to show disapproval or
disappointment: “We don’t approve of my son’s second marriage” or “My
daughter doesn’t visit me as much anymore - we aren’t in touch like before,
but my son always phones me every week and makes it home for the holidays.”
In these situations, it is important to understand the consequences and
repercussions of unequal treatment, most importantly, on the children’s
relationships with each other after the parents are gone. It should never
be underestimated that unequal treatment when combined with grief can cause
a powerful emotional reaction after a parent dies, and can harm and even
destroy children’s relationships with each other and cause a permanent
family rift between siblings.
A will can be seen as the final report card from parents to their children.
What leads to disputes and even litigation is often not about the money
itself, but the symbolic message conveyed to children who may view what is
left to them as a measure of their parents love for them. Feelings of
rejection and hurt that are unleashed in the aftermath can be the catalyst
There are certain clear exceptions, such as where because of a severe
disability, and if family finances simply will not allow for equal
treatment, a disabled child’s needs will come first, and priority will be
given to him or her under the will. In these cases, communication of the
reasons for the difference in treatment and parent’s intentions is
important, and children’s expectations managed so there are no surprises.
In other cases, one child may be very financially successful and another
may not be. Parents may feel they want to give more under their wills to
the less financially successful child “because they need the money” and
their other child has no need. This situation can be a minefield. The
financially successful child may feel they are being “penalized” for their
success and that their efforts are all for nought if their sibling ends up
with a much larger inheritance. I like to tell my clients that unless the
financially successful child is on the level of a Celine Dion (and maybe
even then), their child may resent any preference given to their sibling
with this approach of “equality of result,” and that to ensure their
children always remain close, they need to consider these consequences as
When it comes to family succession, as in the laws of physics, for every
action there is a reaction. Successfully navigating family succession
involves looking ahead to thoughtfully consider and understand the
consequences of our actions and take them into account in successfully
passing on wealth.
Margaret O’Sullivan is the principal of the Toronto-based trusts and estates law firm
O’Sullivan Estate Lawyers. She practices exclusively in the areas of estate planning, estate
litigation, advising executors, trustees and beneficiaries, and
administration of trusts and estates. This article originally appeared
O’Sullivan Estate Lawyers blog. Reprinted with permission.
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