Estranged Son Wins %60 In Wills Variation action.

estranged sonEstrangement often presents factual problems for the court to determine in wills variation cases.

When adult children are disinherited by their parents on the basis of alleged estrangement, the Courts will examine the relationship very closely to attempt to determine whether the disinherited child, or the parent were more at fault than the other for the estrangement.

 

Very often the Courts are unable to solely blame one party or the other, and instead find that the relationship was never particularly strong, that it may have gradually deteriorated over time, and that both parties are somewhat to blame.

 

In the following decision  the parents disinherited their child on the basis of allegations of estrangement and left their estate to six others.

 

The Court examined the reasons for the estrangement very carefully and awarded the disinherited child 60% of both parents estates under the Wills Variation Act BC.

The Power of the Wills Variation Act BC

In Baulne v. Baulne Estate, 2002 BCSC 1905 the parents of the claimant committed suicide together, taking with them their disabled son.

The claimant was the only surviving child of the deceased couple.

For various reasons stated in their mirror wills, including the claimant’s refusal to allow them to have access to their grandchild, the deceased couple disinherited the claimant from their estates, which had a combined net value of $467,000.

The claimant’s refusal to allow his parents to visit their granddaughter was true, and in fact, formalized in a restraining order obtained by the claimant.

Notwithstanding the truth of the will-makers’ reason for the disinheritance, the court held that the deceased parents, particularly the mother, were jointly responsible for the estrangement, and varied the will such that the claimant received 60% from each of his parents’ estates.

 

(54) The central issue in this case then is whether there were circumstances  which negated the moral obligation the plaintiff’s parents otherwise owed     him.  The reasons stated in the Will for the disinheritance were that:

(1)                    The plaintiff treated his parents with complete disrespect;

(2)                    The plaintiff and his wife had been provided with a residence and substantial sums of money on the provision that the plaintiff would repay such sums of money and he had failed to do so; and

(3)                    The plaintiff had refused to allow them to have contact with their only grandchild.

 

[54]                 I am unable on the evidence before me to find that the plaintiff treated his parents with complete disrespect such as to negate the moral obligations his parents otherwise owed him.  He, on his evidence and supported generally     by the other evidence available to me, was a loyal son to his parents at least until 1993 when he and his wife were evicted from the manufactured home. I will be dealing with the events and the effect of the events after 1993 shortly.

 

[55]                 With respect to the second stated reason, it is clear that the plaintiff’s parents did not provide the plaintiff and his wife with a residence.  The manufactured home was never registered in the plaintiff’s name.  He paid the loan payments in exchange for being permitted to reside in the home and he was not permitted to take the manufactured home to another location when he was evicted from his parents’ property.  Consequently, that part of the reasons was not based on true facts.

 

[56]                 With respect to the advancement of substantial sums of money, I accept that the plaintiff’s parents incurred expenses in the neighbourhood of $45,000.00 to $50,000.00 in purchasing the manufactured home, renovating it and paying out the plaintiff and his wife’s car loan.  To the extent those sums related to the manufactured home, I cannot conclude that they were sums “provided to the plaintiff and the wife”.

 

[57]                 However, the car loans were clearly obligations of the plaintiff and his wife, were discharged for them by the plaintiff’s parents and were not repaid by the plaintiff or his wife.  Consequently, I accept that at least the value of the car loans, which I accept were in the range of $10,000.00 to $11,000.00, were sums provided to the plaintiff and his wife.  I do not,  however, consider that the advancement of that sum of money is a sufficient reason or justification to completely negate the moral obligation owed by the deceased to their son. 

 

[58]                 Finally, I turn to the third reason, namely the refusal on the part of the plaintiff to permit his parents to see Justine.  As I understand the submissions made on behalf of three of the defendants, if I conclude that this reason is true in fact and logically connected with the act of disinheritance, notwithstanding any basis for the refusal, the plaintiff’s claim should be dismissed. 

 

[59]                 I do not accept that the law is applied in that way.  Where a reason for disinheritance is based on fact, such as a long-standing estrangement, the court should be and is prepared to consider how the estrangement occurred and, in essence, to consider questions such as fault or blame for the estrangement.   

   

[60]                 Similarly, in this case, although the refusal on the part of the plaintiff to permit his parents to see their only grandchild is fact, I must, in my view, consider the evidence of the events leading up to that refusal in order to arrive at a conclusion as to whether that fact negates the moral obligations otherwise owed by the deceased for their son.

[61]                 As I said earlier, a significant majority of the evidence in this tragic case related to the gradual destruction of the plaintiff’s relationship with his parents.  Certainly the tenure of the plaintiff’s evidence, as I said earlier, was that virtually all of the fault or blame for that destruction of the relationship lay with his mother, with perhaps a small part being attributable to his father, particularly for failing to get help himself, failing to insist that his wife get help and failing to stand up to his wife when she took certain positions or actions. 

[62]                 It was the plaintiff’s evidence that his mother consistently refused to take any responsibility for her own actions.  Having heard his evidence and having watched him testify, I have concluded that the plaintiff does not take much, if any, responsibility for the estrangement either, although there were clearly some points at which the plaintiff could have taken steps to prevent escalation of the tensions, which I accept were being driven primarily by the plaintiff’s mother and by her need to have more involvement with her grandchild than she was being permitted. 

[63]                 Although not much can be gained by engaging in speculation as to what would or might have happened if a different approach had been taken to any given event, I do consider that some fault for the eventual complete estrangement lays with the plaintiff. 

[64]                 He could, once access was apparently successfully initiated in early 1996, have followed up and scheduled another visit rather than wait until his mother called to ask for access some six months later.  The letter following the last access visit could have been more thoughtfully composed.  The plaintiff’s mother’s plea to him at his work place that the plaintiff consider counselling with them could have been met with a better response. 

[65]                 The obtaining of the restraining order, I am satisfied, was an overreaction to what had taken place to that date and there was, I am equally satisfied, no basis for the expression of any fear that the plaintiff’s mother would try to take Justine away from the plaintiff and his wife or from her school without notice.

[66]                 The restraining order foreclosed any opportunity the plaintiff’s parents would otherwise have had to try to mend the relationship.  The plaintiff took no steps himself over the four years between the date the restraining order     was granted and the date of his parents’ and brother’s death to try to mend the relationship. 

[67]                 Taking all of the evidence into account and being satisfied that Belva and Maurice Baulne loved and had special relationships with children in general and that they longed for a relationship with their only grandchild, I am still     unable to conclude that the plaintiff’s refusal to allow them to have contact with their grandchild completely negated the moral obligation they owed to     the plaintiff.

[68]                 Consequently, I am satisfied that the plaintiff has established the existence of the moral obligation and that the obligation has not been negated. As I stated earlier, the estate was of sufficient size to permit provision to have been made for the plaintiff.

[69]                 Given those conclusions, I am satisfied that the Wills of Belva and Maurice Baulne did not make adequate provision for the plaintiff. 

[70]                 What provision, then, is adequate, just and equitable?  In answering that question, I consider that I must take into account the relationship that Maurice and Belva Baulne had with the six defendants, to the extent that I heard evidence about that; the need to protect testamentary autonomy or at least to interfere with it only insofar as the Wills Variation Act BC requires; and the needs of the plaintiff, who at this stage is steadily employed,     as is his wife, with a combined income of between $60,000.00 and $70,000.00 per year with modest assets and apparently manageable debt, and that the plaintiff is incurring some special expenses with respect to Justine’s schooling. 

[71]                 I also consider that the reasons for disinheritance as expressed by the plaintiff’s parents, although not sufficient to support complete disinheritance, can and should be taken into account in determining objectively what society’s reasonable expectations of what a judicious parent would do in the circumstances.      

[72]                 The evidence from the three defendants who have argued that the Will should be upheld was that each enjoyed a close relationship with Maurice and Belva Baulne and would likely have, by their continued support, provided comfort to them at a time when they clearly would have needed it.  In particular, the defendant, Gerald Burtch and his wife, who moved into the manufactured home after the plaintiff was evicted, and whose children were very close to the deceased, satisfied me that there was a special bond which clearly the deceased chose to recognize not only by naming him as a beneficiary but also by naming him as their executor.

[73]                 The other two defendants who testified also satisfied me that they were close to the deceased and logical beneficiaries to their estates. 

[74]                 Taking the competing interests into account, bearing in mind that the main aim of the Act is the adequate, just and equitable provision for the spouse and children of testators, and considering the size of the estates, I have concluded that the adequate, just and equitable provision for the plaintiff in this case is sixty percent of the net estate of each of his parents. 

 

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.

More Posts - Website - Google Plus