Unequal Inheritance Among Siblings in Ontario: Your Options

Finding out that a brother or sister received more than you from a parent's estate hurts, whatever the reason. You may wonder whether it was deliberate, whether someone pressured your parent, or whether the estate is being handled properly.

An unequal result is not automatically unlawful, and it is not automatically fair either. This article explains where unequal outcomes come from, which claims people commonly raise, and which time limits and court routes are set out in Ontario law.

Why siblings end up with different amounts

Before assuming the will is the cause, check what actually passed through the estate. Some assets never become part of it. Jointly owned assets that pass automatically to the other owner, and RRSPs, RRIFs, TFSAs and pension plans with a beneficiary designation, are excluded from the estate's value for Estate Administration Tax. A surviving joint tenant of land registers title by survivorship, not through probate.

• A child who was a joint owner of a bank account or home may receive it directly.
• A child named as beneficiary of a registered plan may receive it directly.
• Debts and expenses come first: under a will, the estate is normally distributed only after assets are liquidated and the funeral expenses and debts are paid.
• If a surviving spouse elects equalization, the gifts to them in the will are revoked unless the will says otherwise. That can change what is left for the children.

Whether a particular joint account was meant as a gift or only as a convenience is a legal question that depends on the evidence. A lawyer can tell you whether it is worth raising.

Common grounds people raise

Two concerns people often raise are whether the person making the will understood what they were signing, and whether someone pressured them into it. Which kind of challenge, if any, is open to you depends on the facts of your situation, so it is worth confirming with a lawyer.

Time limits and the right to start a challenge depend on the specific claim, so see a lawyer promptly rather than waiting. Acting early also helps preserve documents and witnesses.

A support claim as a dependant

Ontario law lets some dependants apply for support from an estate if the deceased did not make adequate provision for their support. For example, an unmarried partner who cohabited for at least three years, or who cohabited in a relationship of some permanence and is a parent of a child with the deceased, can apply under Succession Law Reform Act s. 58. Whether a grown child can apply as a dependant depends on your situation, so it is worth confirming with a lawyer.

Holding the estate trustee to account

Even when the will itself is sound, you can ask questions about how the estate is run. No Ontario law requires an estate trustee to pass accounts at fixed intervals, but the court can compel it at the request of a person with an interest, such as a beneficiary or creditor. On a passing, the judge may make a full inquiry into the whole estate and look into complaints of misconduct, neglect or default.

• The Superior Court of Justice may remove a personal representative and appoint someone else under Trustee Act s. 37(1).
• The court may relieve a trustee from personal liability if they acted honestly and reasonably and ought fairly to be excused.
• A beneficiary who cannot be found is generally dealt with through payment into court on the final passing of accounts, unless the Public Guardian and Trustee is guardian of property for the person entitled, in which case the money is paid to the Public Guardian and Trustee instead. The creditor-notice protection cannot be used to cut off a missing beneficiary.

What to do next

• Get a copy of the will and find out whether a certificate has been issued, and when, so you can track the six-month support deadline.
• List what each sibling received, separating estate assets from joint property and beneficiary designations.
• Write down dates, who was present, and any medical or care history that bears on capacity or pressure.
• Ask the estate trustee in writing for information about assets, debts and planned distributions.
• Do not sign a release or consent to distribution until you have had advice.
• Speak with an estate litigation lawyer soon, because some deadlines are short.

Frequently asked questions