The Double Portion In Inheritance Law - Enforceable Or Not?
In ancient times, the eldest son (sorry girls) was entitled to a double share of his father's estate. Many opinions have been offered as to why including the obligations for the eldest son to support his unmarried sisters right to the double portion existed whether the eldest had unmarried sisters or whether his mother predeceased his father.
Times have changed and the default position of the eldest son getting a double share no longer exists. A testator can, however, give double portions to any individual that s/he chooses to. However, a unique circumstance can arise when there is more than one testamentary instrument which effectively gives a beneficiary a double share. A recent Ontario Superior Court decision looks at one such situation and how the law deals with a double portion.
The testator had two children a son and a daughter. It was uncontroverted that she intended that both her son and daughter would share equally in her estate. In 1990, she gifted a cottage valued at $145,000 to her son. Around the same time, she made a provision that her daughter would inherit $145,000 and the remainder of her estate would be divided equally between the son and daughter.
Nine years passed and the testator created a trust to deal with certain assets. Aside from providing some benefits to the testator during her lifetime, the trust gifted $150,000 to the daughter with the remainder of the assets being divided equally between the son and the daughter.
Following the death of the testator, the son complained that the daughter was receiving double the value that he had. He had, after all, received a cottage valued at $145,000 while his sister was going to receive $145,000 under the will and another $150,000 under the trust before an equal division. It seemed as if she was receiving a double portion.
The son asserted that, at law, there is a presumption against the double portion and that where a child has already received a gift, a second bequest will fail.
The trial judge rejected this assertion, first reviewing the law on the presumption against double advancement and ruling that it applies only in circumstances where the first gift was given "with a view to establishing [the child] in life". In other words, if the gift had been given to pay for tuition or to set the child up in business the presumption might apply. The judge then remarked that the presumption against the double portion is "not strong and is easily rebutted."
In reviewing the case, the judge noted that there was some evidence that the testator had made the second gift to account for the value of the cottage increasing. Had the testator gifted the value of the cottage to her daughter at the time she gifted the cottage to her son, the monies could have been invested and increased. In order to ensure an equal division, the testator had gifted an amount roughly equivalent to the increase to the cottage value.
The Lesson: While the presumption against a double portion still does exist, it is not strong and it can easily be rebutted. The general rule that an individual can dispose of his or her assets in whatever what he or she chooses is likely to prevail in the absence of very strong evidence to the contrary.
Campbell v Evert, 2018 ONSC 593 (ONSC) https://www.canlii.org/en/on/onsc/doc/2018/2018onsc593/2018onsc593.pdf
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