The children were treated unequally in the will – is that fair?

  • Maybe.  It depends on the facts.
  • Testators are entitled to consider factors like the children’s health, financial means, duty to care for others, gifts they received during the testator’s lifetime or outside the will and the extent the children helped to care for the testator as she aged.
  • The testator’s wishes will be respected so long as the gifts to each child are within an acceptable range.

In McBride v. Voth the testator had three children.  Two lived independently, but one daughter, Margot, had always lived with the testator.  The testator valued Margot’s love and companionship.

The testator’s only real asset was her house.  Her will allowed Margot to live in the house as long as she wished.  Once Margot moved out, the house was to be sold and the money divided between the three children.  Margot intended to live in the house for the rest of her life.  Based on typical life expectancy statistics, the other two children would receive their inheritance in their 80’s, if they outlived their sister.

The court decided that the testator had over-provided for Margot, and had failed to make adequate gifts to her other children.  Margot was entitled to the largest share of the estate because she had contributed to the household and to her mother’s well-being and physical care.  The other daughter was entitled to the second largest share because she had a great financial need.  The son was reasonably well off, so was entitled to the smallest share.  Margot receive 45% of the estate, the other daughter 30%, and the son 25%.

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Read the case:  McBride v. Voth