Estranged Adult Child Awarded %40 MOdest Estate

estranged son

A disrespectful, estranged adult child and almost abusive,who was also virtually unemployable and living on welfare, was awarded 40% of the $50,000 estate of his mother, Bronson v Bronson Estate 1996 BCJ 3038

The plaintiff was raised as a single child in abject poverty by the deceased- he never knew his father.

He actually hit his mother on one occasion.

 

The Bronson case arguably stands for the proposition that if an adult child has need, he or she may still succeed in a wills variation action despite there being valid reason to disinherit the child.

 

“There is some evidence that relations between mother and son were not always friendly but I am doubtful if it could be said that there was a continuing course of physical abuse of his mother by her son, the plaintiff — it was probably a situation where there were frustrations on both sides and it appeared from the evidence that at times, the son spoke harshly or disrespectfully to his mother. It seems pretty clear that there was a degree of estrangement on the part of the mother towards her son and I daresay that to a degree that estrangement was occasioned by his sometimes inconsiderate treatment of her.

 

17      In this case, the court faces the claim of an adult son who is to a degree disabled. The plaintiff struck me, in giving his evidence and in argument, as reasonably articulate but he says that the sequelae of his 1974 accident have caused him great difficulty in finding and keeping steady employment. However, his early history immediately after high school was not altogether productive on the work front and I am by no means fully convinced that he is as unemployable as he claims to be. However, given his poor work history, it is undoubtedly the case that he is a person who would have above ordinary difficulty in finding steady remunerative employment. In short, his prospects are not highly favourable by any means.

 

18      A case that in some ways may throw light on the instant situation is the earlier British Columbia case of Re Bailey Estate, a judgment of Wilson C.J.S.C., reported at [1972] 1 W.W.R. 99 and on appeal, affirming the trial judgment at [1972] 3 W.W.R. 640. The headnote conveniently sets out the essence of the case. The case involved the estate of the wife of Nat Bailey, the well known local restaurant proprietor of White Spot fame.

By her will the testatrix left her entire estate, worth some $250,000, to her husband if he survived her by more than ten days, otherwise to her three grandsons, the children of the petitioner, who was her son by a former marriage. The husband, a wealthy man in his own right, survived the testatrix and took her estate. The petitioner was a weak-willed and irresponsible spendthrift who had enjoyed generous treatment from his mother on many occasions in the past and had, by his own conduct, thrown away many chances of making good engineered for him by her kindness. He was now earning $100 per week without any guarantee of continued employment and he was in debt.

Wilson C.J.S.C. on a full review of the authorities, held that notwithstanding the petitioner’s deplorable record as disclosed by the evidence, he was the only person to whom, within the framework of The Testator’s Family Maintenance Act, the testatrix owed a moral duty which she had not fulfilled; an order made under the Act by a judge was not to be considered primarily as a reward for good conduct and character or as a punishment for bad conduct and existing claims and considered in the light of the magnitude of the estate. In the case at bar the moral duty undoubtedly owed by the testatrix to the petitioner would be met by an order directing payment to him of $300 per month for his lifetime.

 

19      At p. 102, the Chief Justice used this langauge concerning the applicant in that case:

I am therefore confronted with a situation in which it cannot be said that the mother had any debt of gratitude to her son, or any reason to suppose he would put to proper use any capital sum she might leave him. She had, on the contrary, a long record of totally unappreciated benevolences conferred by her on her son, of wasted opportunities and of bitterly disappointed maternal hopes.

 

20      There are differences in that case and the case at bar and I think that here the son from time to time did try to help his mother around the property but in general, he was not of great assistance to her economically and I think that relations were often poor between them. Based on their relationship, his claims to her moral bounty were quite minimal. In considering what I might describe as the merits of his claim to receive an inheritance from his mother, I would not be inclined to take a particularly expansive view. But I cannot lose sight of the fact that he is to an extent a disadvantaged person and clearly he is the only surviving close blood relative of the testatrix. Bearing in mind the words of Chief Justice Wilson in the case of Re Bailey Estate and some of the comments of that able jurist Freedman J. (as he then was) in Re Karabin (1954) 13 W.W.R. (N.S.) 222 (referred to by the Chief Justice in the Bailey case), it seems to me that the mother may be said to have failed in her duty to her son, having regard to the authorities that have construed our statute and similar statutes in other jurisdictions. The authorities do make it clear, however, that this class of legislation does not give to the judiciary a roving commission to wholly disregard the wishes of testators and to recast wills according to the individual jurists’ notions of justice. That said, however, it must be honestly recognized, as observed in the Allardice case, that the views of different jurists may not always coincide and to some extent each case involves a judgment call and a value judgment. In effect, someone must make the decision and the individual judge is called upon to do so.

 

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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