The value of the estate changed a lot between the time the will was drafted and the date of death – does that matter when deciding whether a gift to a child is fair?

  • Yes.  A judicious parent can favour one child over another.  However, if the value of assets changes a lot before death, the final result may be considered unfair

In Kelly v. Bell the deceased mother owned a house and some cash.  In her will she gave her son the house and divided the cash equally between her son and daughter.  When she drafted her will, the house was worth $1 million and she had $860,000 in cash.  By the time she died the house was worth $2 million and she had $700,000 in cash.

The judge said that the testator’s reasons for making an unequal distribution were valid and rational.  While the planned distribution of 77% to the son and 23% to the daughter was probably on the low side, it was not outside the range of adequate, just and equitable distribution.  However, by the date of death the value of the assets had changed enough to make the distribution 88% to 12%.  This division was not within the range of society’s reasonable expectation of a judicious parent in the circumstances.  It was dangerously close to a disinheritance of the daughter, which the testator never intended to do.

Changes between the date of the will and the date of death may make a difference.  We can help.  Contact us.

Read the case:  Kelly v. Bell

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