A woman in British Columbia is suing her father’s estate, claiming that he failed to adequately provide for her in his will on the basis of her sexual orientation.

Donna White claims that her relationship with her parents became strained in April of 2001 after she revealed that she was a lesbian. White says that her family isolated her and made it clear that they did not accept her long-time partner, and now wife, Ann. According to White, her parents and siblings failed to acknowledge the couple’s 2010 marriage.

White claims that her parents systematically disinherited her due to her sexual orientation, beginning with the transfer of their investment account and apartment into joint ownership with White’s sister in 2003 and 2004. In his will, White’s father makes no provision for her, but names her brother and sister as equal beneficiaries of his estate.

White’s brother-in-law says that the parents did not have a problem with White’s lesbian relationship, and that White had previously been sent a copy of the will.

The B.C. Wills, Estates and Succession Act differs from Ontario legislation in that it requires testators to make adequate provision for their children as well as their spouses. Section 60 of the Act states that:

Despite any law or enactment to the contrary, 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.

Where adequate provisions are not made for a child or spouse, Section 62(1) of the Act allows the court to “accept the evidence it considers proper respecting the will-maker’s reasons, so far as may be determined,” for coming to that decision.

In 2006, the B.C. Superior Court used these sections (as they appeared in the legislation that preceded the current Act) to allow a will variation based on the differential treatment of a homosexual man under his father’s will. In that case, Peden v. Peden Estate, the man had dedicated a significant amount of time to caring for sick family members, including his father, but was not made a residue beneficiary equally with his siblings under his father’s will. The court determined that the real reason he was not given a share of the residue was that his father did not approve of his sexuality, and the son was therefore granted relief. 

As highlighted in the recent Court of Appeal decision in Re Spence Estate, the law in Ontario does not allow the same recourse for adult children who don’t feel as if they’ve received their fair share of a parent’s estate, even where public policy considerations may be engaged.  In Re Spence, the applicant argued that she was left out of her father’s will because the father of her child was white, and that the will should therefore be declared invalid on the basis that racial discrimination is against public policy. In reversing the decision of the lower court, which found in favour of the applicant, Cronk J.A. emphasized the freedom under Ontario law for testators to exclude children who are not dependents from their estate. The Court of Appeal also commented on what type of evidence the court can consider in will challenges, stating at para. 90 that, generally, “extrinsic evidence of a testator’s intentions is not admissible when the testator’s will is clear and unambiguous on its face.” The applicant has asked for leave to appeal to the Supreme Court.