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Wills Variation -Abandoned Infant

abandoned childMcMain v Leblanc 2013 BCSC 891 involves a fact pattern that is all too frequent in wills variation cases-the abandoned infant  who subsequently finds himself or herself disinherited from the absconding parent, often under the pretext of lack of contact, or even estrangement, but rarely the deserter parent.

In 1969 the testator separated from his wife and two-year-old son, the plaintiff when they resided in England. The testator moved to Canada in 1972 and thereafter paid no child support whatsoever and had almost no contact at all with his son.

In fact he and his wife had initially fought over custody of the plaintiff, and the mother was granted same.

No one heard from him for some years until he showed up unannounced in 1975 asking to see the plaintiff. After that brief visit he was again not hurting again for another seven years when he once again turned up unexpectedly and had two brief visits. He then phoned again in 1989. The plaintiff contacted the testator by phone from time to time but the testator expressed no interest in seeing him.

 

The testator died in 2011 and the plaintiff only heard of his father’s death when he received a copy of his father’s 2005 will, which excluded the plaintiff on the following basis:

“I have had limited contact and have not seen him in over 20 years”

The estate consisted of $330,000 cash and was left solely to the testator’s niece. In addition the niece had received an RRSP of approximately $121,000 net of taxes, outside of the estate.

The court ordered the son $180,000 out of the estate holding that the testator could not justify avoiding his moral obligations to his only child in death, by resorting to his indifference to his parental responsibilities in life. The plaintiff had a strong moral claim to a share of his father’s estate.

 

The court had the following legal reasoning and comments :

In the  wills variation case of Graham v. Chalmers, 2010 BCCA 13, Kirkpatrick J.A. referred to the leading authority interpreting the Act, Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 (S.C.C.), and said at paras. 29 and 30:

[29] Tataryn is the leading decision in this area of the law. McLachlin J. (as she then was), speaking for the Court, clarified the principles applicable to the Wills Variation Act. Tataryn continues as the governing authority. On an application to vary a will “the court must ask itself whether the will makes adequate provision and if not, order what is adequate, just and equitable. These are two sides of the same coin” (Tataryn at 814). “Adequate, just and equitable” is determined in the specific circumstances and in light of contemporary standards.

Against this consideration is balanced the principle of testamentary autonomy. However, testamentary autonomy must ultimately yield to what is “adequate, just and equitable”: Tataryn at 815-816.

[10] In Tataryn, supra, McLachlin J. clarified that what is “adequate, just and equitable” must be viewed in light of current societal norms, and wrote:

[28] … Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.

[11] In this wills variation case, the plaintiff was the testator’s only child. No other person was entitled to make a claim under the Act. The plaintiff did not advance legal obligations to support his claim. He relied, instead, on the moral obligations referred to in Tataryn.

[12] The defendant acknowledged that the circumstances under consideration here gave rise to a moral obligation in the testator respecting the plaintiff, but submitted that the testator’s written reasons for disinheriting the plaintiff were valid and rational, and that the plaintiff had failed to discharge the burden of establishing that those reasons were false or unwarranted. Accordingly the defendant submitted that the testator’s moral duty in respect of the plaintiff was negated: Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213.

[13] The law requires only that the reasons should be valid, meaning based on fact, and rational, in the sense that there is a logical connection between them and the act of disinheritance: Kelly v. Baker, [1996] 82 B.C.A.C. 150.

[14] Therefore, as previously stated, the defendant submitted that the plaintiff’s claim should be dismissed. In the alternative, the defendant took the position that the plaintiff’s moral claim to provision from the estate, if not negated, was tenuous or weak, and the plaintiff should be entitled to a maximum of 1/3 of the net estate, or approximately $130,000.

[15] By contrast the plaintiff’s position is that the reasons for disinheritance were unwarranted and only superficially or partially true, and asked that all or substantially the all of the net estate should be awarded to him.

However, there was one aspect of his life in which the testator came up badly short, and that was in the discharge of his parental obligations to his son. Whatever the strengths of the testator’s character, and I am prepared to accept that there were many, he had this one flaw: having brought the plaintiff into the world, and having fought assertively to gain custody of him, after his departure from England, he gave him short shrift and ignored and neglected him for most of his life.

[83] Apart from a couple of short visits in England, and with the notable exception of the trip to Canada in 1983, during his lifetime the testator provided the plaintiff with precious little material or emotional support. He occasionally raised the plaintiff’s hopes of establishing a proper relationship him, and I am satisfied that this is precisely what the plaintiff wanted, but then disappointed him by reverting into himself and allowing lengthy periods to pass without any communication.

[84] No one will ever know for sure what motivated, or failed to motivate, the testator. His attitude towards his son is most peculiar, especially when it is considered that, during their brief and intermittent encounters with each other, it appears that the testator and plaintiff got on well.

[85] I have no idea why, after the successful 1983 visit, the silence between father and son should have resumed, or why the testator would not agree to have the plaintiff come and stay with him for a while in 1988. It is a mystery to me why the testator travelled to England in 1989 for his sister’s funeral without looking up the plaintiff. His failure to make the effort to meet the plaintiff in Vancouver in 1995 strikes me as most odd as well, and the excuses given, that he had slept in and that, in essence, the visit would be too brief to merit the expense of making the journey, strike me as being petty, self-centred and more than a little sad.

[86] The testator seems to have been tightly connected to his sisters and their offspring. He was married to his second wife Betta for many years. He was a caring and devoted dog owner. I conclude that he was capable of forming strong bonds with loved ones, and of commendable constancy in his relationships with others, human and canine alike. But for some reason that I simply cannot fathom he rejected and neglected his son.

[87] I conclude that the testator turned his back on the plaintiff from an early age. Such efforts as he made over the years to care for his son or provide him with material or emotional support were miniscule. Most of the effort to keep any relationship alive was made by the plaintiff. Apart from a couple of impromptu appearances on the plaintiff’s doorstep in England and the 1983 Canadian visit, the testator’s life-long indifference to his only son was almost total.

Although every case must be decided on its peculiar facts, and the facts at bar differ from those in Gray v. Nantel,supra, nevertheless I would respectfully adopt the spirit of the following observation of Donald J.A. as follows at para. 17 of the judgment:

[17] I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claim to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.

[90] Here, too, the testator had one last opportunity to behave after the manner of a judicious parent and recognize his moral obligation to his son by means of his will. He failed in

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