When a will gives a son twice his sister’s share

Twenty years of care

For twenty years, a daughter paid grocery bills, drove her parents to appointments and gave up shifts when they needed her at home. Her brother contributed nothing. After their last parent dies, the will gives him twice her share. Our first essay asks what justice requires of this family. This companion asks what the law does with the same facts. Read the original inheritance essay

The inheritance question in Islam

Qur’an 4:11 gives a son twice a daughter’s share when they inherit together as the deceased’s children. The classical Sunni commentator Ibn Kathir related the difference to men’s obligations to support dependants. On that reading, the family relationship fixes the share even when a particular son has done little to help. A fixed entitlement also gives a daughter a claim when relatives would otherwise leave her nothing. Qur’an 4:11 · Ibn Kathir on 4:11

Muslim interpreters today differ. The contemporary Shi‘i jurist Ali al-Sistani preserves the two-to-one division where a son and a daughter are the only heirs. Amina Wadud, in Qur’an and Woman, asks why a son should necessarily receive more when his sister supported their widowed mother. Her argument gives weight to the care actually provided without prescribing a new fraction. A family can take either view of its moral obligations. What happens to the estate in Canada or the United States depends on the will and the law governing the estate. Al-Sistani, ruling 2748 · Wadud, pp. 87–88

What happens with or without a will

If no valid will covers the property, local intestacy law determines who inherits it. For example, if the only survivors are one son and one daughter, with no spouse or partner entitled to inherit, Alberta and New York ordinarily divide the estate equally between the two children. The family’s religion does not by itself change that result. Alberta intestacy rules · New York intestacy rules

If a valid will gives the son two-thirds and the daughter one-third of what remains after debts and expenses, those shares can ordinarily take effect. In probate, a court may check that the parent properly signed the will even when nobody objects. The court does not usually change an otherwise lawful division on its own initiative because one child provided more care. A daughter can nevertheless accept the will as valid and bring a claim concerning what she receives. Spence, 2016 ONCA 196 · Arizona probate statute · U.S. law on testamentary freedom

How the same family could fare in Canada

In Alberta, the Wills and Succession Act limits who can claim maintenance and support from an estate. The categories include an adult child whose disability prevents them from earning a livelihood and certain dependent full-time students aged 18 to 21. A financially independent adult daughter does not qualify simply because she supported her parents. Whether they agreed to reimburse or pay her is a separate question. Alberta Act, ss. 72 and 88

In British Columbia, section 60 of the Wills, Estates and Succession Act allows a spouse or child, including an independent adult child, to ask a court to vary a will that makes inadequate provision for them. The court may consider the daughter’s years of care alongside lifetime gifts, the size of the estate and the circumstances of the other beneficiaries. B.C. Act, s. 60 · Grewal, 2019 BCSC 1154

In Grewal v. Litt, four daughters helped on the family farm and cared for their parents. The parents’ wills left each daughter $150,000 from estates worth roughly $9 million. Their two brothers were to receive the rest. All six agreed the wills should be varied. They disagreed about how much. The court awarded each daughter 15% and each son 20%. This case involved a Sikh family. Its relevance here is how a Canadian court weighed the children’s actual contributions while still allowing unequal shares. Grewal, 2019 BCSC 1154 · Case summary

In Ontario, an independent adult child has no general right to a fair share. In Spence Estate (Re), the Court of Appeal upheld an unconditional gift despite an allegation that the parent had acted from racial prejudice. A religious reason for naming children in unequal shares does not by itself invalidate an outright gift. An express condition attached to a gift can raise different public-policy questions. A daughter whom the parent supported, or was legally obliged to support, may also qualify for dependant support. Spence, 2016 ONCA 196 · Ontario Act, ss. 57–58

In Québec, the Civil Code allows a person entitled to support, including a qualifying child, to claim a contribution from the succession within six months of death. A child may qualify even if she had received no support payments before the death. The question is whether the daughter was entitled to support from the parent. Her having supported the parent for years does not, by itself, establish that entitlement. Québec government guide

When the parent promised something in return

In Deglman v. Guaranty Trust, a nephew performed services after his aunt promised him property. He could not enforce the oral promise to transfer the land, but the Supreme Court of Canada awarded him the fair value of his services. For a caregiving daughter, a receipt may show what she spent. A parent’s message promising repayment may explain whether the expense was a loan. Lost earnings alone do not establish that a parent agreed to pay wages. Deglman, [1954] SCR 725

How the rules vary in the United States

In most U.S. states, a parent can leave unequal amounts to adult children. A judge generally has no authority to rewrite the shares solely because the result seems unfair. State law may nevertheless protect a family member or recognize a claim that changes how much is available to distribute. U.S. law on testamentary freedom

Illinois has a provision directly relevant to this daughter. A child who lived with a parent with a disability and personally cared for that parent for at least three years may qualify for a statutory claim against the estate. The law takes lost employment opportunities into account. Someone who visited daily for twenty years could have provided invaluable care and still fail the requirement that they lived together. Illinois Probate Act, § 18-1.1

Louisiana reserves part of an estate for certain children, including those aged 23 or younger when the parent dies and those of any age with a qualifying permanent incapacity. In New York, a surviving spouse may elect to receive a statutory share. If a surviving spouse is added to our example, the amount available for both children may change. Neither protection turns on which sibling looked after the parents. Louisiana Civil Code, art. 1493 · New York elective share

The difference between repayment and inheritance

Return to the original essay’s $90,000 estate. Assume the two siblings are the only beneficiaries, the will divides the residue two to one, and all obligations other than the possible loan below have been settled.

In the second example, the daughter receives $50,000 in total. Her brother still inherits twice as much as she does. The difference is that $30,000 was already owed to her. This distinction also appears in Qur’an 4:11, which describes the inheritance shares after debts and bequests. Qur’an 4:11 · Dar al-Ifta on estate debts

A brother may regard the prescribed share as his religious entitlement and still recognize a responsibility to his sister for the care she carried alone. A court can decide a claim that the law recognizes. Its decision cannot settle everything one sibling may owe the other in gratitude or fairness.