Scott-Polson v. Henley, 2013 BCSC 247

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Scott-Polson v. Henley, 2013 BCSC 247 Date: 20130219 Docket: 10-5036 Registry: Victoria Between: Rosalyn Jeannette Scott-Polson aka Lyn Polson, Sally Marie Rebinsky, Sylvia Christine McNeill aka Chris McNeill, Wendy Theresa Scott-Polson, Tami Karleen Barber, and Rhonda Joy Nicholas Plaintiffs And: Dale Henley, Katrina Bernice Grover, Karen Nicola Galbiati, as the Executors of the Will of Rosemary Joy Lupkoski, and Katrina Bernice Grover, Karen Nicola Galbiati and Stephen Craig Lupkoski Defendants Before: The Honourable Mr.

Justice Sewell Reasons for Judgment Counsel for the Plaintiffs: P.B. Newman Counsel for the Defendant Dale Henley: J.R. Fowler Counsel for the Defendants Dale Henley, Katrina Grover and Karen Galbiati as Executors: H.J. Rusk Counsel for the Defendant Stephen Lupkoski: N.W. Lott and C. Gordon Place and Date of Trial: Victoria, B.C. October 29-31, 2012 and November 1-2, 5-9, 2012 Place and Date of Judgment: Victoria, B.C. February 19, 2013 INTRODUCTION [ 1 ] Rosemary Joy Lupkoski (“Rosemary”) died on May 8, 2010 at the age of 80. She had lived what in many ways was a difficult life.

She is survived by nine children. Six of the children are the product of her marriage to Ronald Scott-Polson, whom she divorced in 1959 after a nine-year marriage. Three were born to her and her second husband, Nicholas Lupkoski, whom she married in 1960. Nicholas was some 18 years older than Rosemary. He died in September 1988 at the age of 76. [ 2 ] In these reasons I will usually refer to the parties by their first names.

I do so only for convenience and not out of any lack of respect. [ 3 ] Rosemary left a will dated December 15, 2009 (the “Will”), by which she divided the residue of her estate into four equal portions.

She left one portion to each of the three children of her second marriage and the fourth portion to be divided equally among the six children of her first marriage. [ 4 ] In the Will she explained her reason for so doing as follows: I hereby declare that the reason that I have made an unequal distribution of the residue of my estate between my children is because the bulk of my worldly assets were acquired in the course of my marriage to my second husband, Nicolas Lupkoski, father of the said Stephen Craig Lupkoski, Karen Nicola Galbiati and Katrina Bernice Grover.

Although I love all of my children equally, I believe it is equitable that the children of my second marriage are entitled to receive a larger share of the assets of my estate as such assets were primarily acquired as a result of the work and efforts of their father. [ 5 ] The plaintiffs are the children of Rosemary’s first marriage. They bring this action pursuant to the Wills Variation Act , R.S.B.C. 1996, c. 490 [ WVA ] for an order varying the Will to make adequate, just and equitable provision for each of them out of

Rosemary’s estate. The defendants are the executors of the estate and the three children of the second marriage. The defendant Stephen Lupkoski has filed a counterclaim seeking a reapportionment in his favour, also pursuant to the WVA . BACKGROUND [ 6 ] The parties have executed an agreed statement of facts that provides as follows: 1. Rosemary Joy Lupkoski died on May 8, 2010, at the age of 80. Her year of birth was 1930. 2. Rosemary’s Last Will and Testament is dated December 15, 2009. 3. In 1950, Rosemary married Ronald Frederick Scott-Polson, whom she divorced in 1959, approximately. While married, they had 6 daughters (the Plaintiffs):

a) Rhonda Joy Nicholas, born August 18, 1950

b) Rosalyn Jeanette Scott-Polson, born December 14, 1951

c) Sally Marie Rebinski, born November 18, 1952

d) Wendy Theresa Scott-Polson, December 13, 1953

e) Sylvia Christine McNeil, born June 13, 1957

f) Tami Karleen Barber, born May 29, 1959. 4, On November 18, 1960, Rosemary married Nicholas Lupkoski (“Nicholas”), whose year of birth was 1912. They had 3 children:

a) Stephen Craig Lupkoski, born Feb 11, 1961

b) Karen Nicola Galbiati, born May 1, 1962

c) Katrina Bernice Grover, born Mar 9, 1965 5. When Rosemary and Nicholas were married, Rosemary and her 6 daughters moved into a small home located at 631 Constance Avenue, in Victoria, BC (“631 Constance”). 6. Nicholas had acquired 631 Constance as a joint owner with his former wife, Vera Lupkoski, on April 7, 1955. 631 Constance was then valued at $6,000. 7. Nicholas bought his wife’s share of 631 Constance from his first wife on September 23, 1960. 631 Constance was then valued at $10,000. 8. Nicholas also acquired the vacant lot at 621 Constance in his own name on April 23, 1963 by purchasing it for $800. 9.

Nicholas also acquired the residence at 620 Constance on June 11, 1964, by paying $2,356.20 to purchase an Agreement for Sale with a balance outstanding of $3,643.88 for a total of $6,000. Nicholas took title to 620 Constance in his own name on October 21, 1969. 10. In or about 1969 Nicholas constructed a four-plex on the lot at 621 Constance. 11. On November 9, 1972, Nicholas sold 620 Constance for $23,000. 12. On or about 1972, Nicholas and Rosemary purchased a building lot in Texas. 13. On May 28, 1974, Nicholas sold 621 Constance of $89,900. 14.

On August 15, 1974, Rosemary and Nicholas purchased a 5 acre parcel of land located at 844 Towner Park Road, RR#1, Sidney, British Columbia (“Towner Park”) 15. After the purchase of Towner Park, a residence with attached garage and carport and separate barn were constructed upon the property. 16. After purchasing Towner Park, Rosemary and Nicholas did not acquire any other real estate. 17. On September 30, 1975, Nicholas sold 631 Constance for $56,000. 18. On September 28, 1988, Nicholas died at 76 years of age. 19. On May 20, 2009, Rosemary was diagnosed with multiple myeloma bone marrow cancer. 21.

Rosemary had a minor stroke in the Fall of 2009, and was hospitalized from October 22, 2009 to November 26, 2009. 22. Rosemary was hospitalized on or about March 26, 2010 and died in hospital on May 8, 2010.

23. By the terms of her Will, Rosemary left the residue of her estate as follows: a) 25% to the Plaintiffs, collectively; b) 25% to Stephen; c) 25% to Karen; and d) 25% to Katrina. 24. The grant of probate with respect to the Will was issued on August 19, 2010. [ 7 ] Rosemary left an estate with a net value of $774,576.43 as of October 25, 2012. Except for a small amount of savings, the only asset of the estate was the five-acre parcel and house located on Towner Park Road in Saanich. I will refer to this property as Towner Park.

It was sold after Rosemary’s death for $952,000 before deducting commission and adjustments. [ 8 ] Although all claims in this case are brought pursuant to the WVA , Stephen’s WVA claim is based in part on an alleged agreement with his parents. Stephen’s evidence is that before Nicholas’ death, he and Nicholas, in Rosemary’s presence, agreed that Stephen would work on and look after Towner Park throughout Rosemary’s life and that she would transfer Towner Park to him on her death. Stephen does not allege that this agreement constituted a binding contract.

However, he relies on the agreement and the principles of unjust enrichment as the foundation for his WVA claim . [ 9 ] Rosemary’s marriage to Ronald was very unhappy. Ronald spent very little time living with his wife and family. He provided virtually no financial support to them. Those plaintiffs who were old enough to have a memory of the first marriage all described a life of abject poverty. Rosemary had six young children to look after. She was trained as a teacher but does not appear to have been able to find permanent employment in that field.

There is little evidence as to how Rosemary was able to care for her family. This is not surprising given the young ages of all of the plaintiffs while the marriage continued. It is clear that the family often moved from one rented accommodation to another, sometimes in circumstances suggesting that Rosemary was unable to pay the rent. [ 10 ] After Rosemary married Nicholas, the plaintiffs’ material circumstances improved, but continued to be difficult. The family moved into Nicholas’ small house at 631 Constance Avenue, which was located in what was described as a rough part of Esquimalt.

Between 1961 and 1965, the three children of the second marriage were added to the family. [ 11 ] Life at 631 Constance was not happy for the plaintiffs. They were provided with food and shelter and little else. Once they reached the age of 10 they were expected and required to pay for all other necessities of life from part time work and babysitting. [ 12 ] All of the plaintiffs testified that they were sexually abused by Nicholas. The defendants objected to the admissibility of this evidence on the basis that it was not relevant to the claim for relief pursuant to the WVA .

I permitted the evidence to be led and stated that I would address its admissibility in my reasons. For the reasons set out in paragraphs 85 and 86 below, I am satisfied that any abuse or past ill-treatment cannot be the basis for relief under the WVA . Accordingly it is not necessary for me to make any finding as to the alleged sexual abuse by Nicholas. [ 13 ] In addition to the evidence of sexual abuse, the plaintiffs testified to being subjected to verbal, psychological and physical abuse by Rosemary. I accept their evidence in this regard.

I consider that this evidence is relevant to the plaintiffs’ argument that the reasons given in the Will for unequal treatment of Rosemary’s children were not valid and rational. In particular, I have considered this evidence with regard to the plaintiff’s allegation that Rosemary treated them unequally because of her hatred and hostility to their father Ronald.

I will address this allegation later in these reasons. [ 14 ] I also accept the evidence of Karen and Katrina that they were subjected to similar abuse by Rosemary. [ 15 ] The plaintiffs were required to leave home and support themselves completely as soon as they finished high school. Rhonda, Tami and Wendy left home before finishing high school. None of the plaintiffs attended university. [ 16 ] Remarkably, given their difficult childhoods, all of the plaintiffs except for Wendy are financially self-sufficient and secure.

Wendy has been on a disability pension since 1991 as a result of physical and mental health problems. She does not own a home and has no savings. There is however insufficient evidence to permit me to find that her problems were caused by her upbringing and in particular by any actions of Rosemary. [ 17 ] The financial circumstances of Katrina, Karen and Stephen, the children of Nicholas and Rosemary, are significantly less secure than that of the plaintiffs other than Wendy. [ 18 ] None of Katrina, Karen or Stephen owns his or her own home. They have little or no savings.

It appears that Stephen struggles with alcoholism. At the time of the trial, he was incarcerated and was scheduled to be released in November. Katrina and Karen are both divorced. Karen works as a medical office assistant. Katrina’s current annual income is $43,000. Her debts are approximately $30,000. [ 19 ] There is no doubt that Rosemary was a very frugal person. During her marriage to Ronald, she had to be frugal to survive. After she married Nicholas, her circumstances improved.

His employment income was used partly to finance the purchase and construction of the real estate referred to in the agreed statement of facts. Although there is no direct evidence on this point, I conclude that the available family income was barely sufficient to support nine children.

The house at 631 Constance was small and crowded. [ 20 ] Up to the time that the Towner Park Property was purchased, it appears that Nicholas devoted his time to his job, a second job making fishing reels and to working on the properties that he purchased in Esquimalt, as described in the agreed statement of facts. [ 21 ] Nicholas and Rosemary purchased Towner Park as joint tenants in August 1974 for $46,500. They intended to retire to Towner

Park. When it was purchased, Towner Park was disused pasture land. Nicholas and Rosemary commenced to build a modest butcomfortable home on the property. The evidence is that some of the work to complete the house was done by contractors and some wasdone by Nicholas. I accept that Stephen assisted Nicholas in completing the house and barn on the property. [22] The evidence as to when the house on Towner Park was ready for occupancy is somewhat unclear. The house at 631 Constancewas sold in 1975. By that time, the plaintiffs had all left home.

Nicholas, Rosemary and the Lupkoski children lived in a number ofplaces between vacating 631 Constance and taking up residence at Towner Park. Karen moved to Cloverdale at the age of 16 and Katrinamarried and left Towner Park in May 1984, when she would have just turned 19 years old. [23] Stephen testified that he moved out of Towner Park in or about 1978. After that time, he returned to Towner Park on severaloccasions. After a number of failed relationships he returned to Towner Park.

While the exact details are somewhat unclear, it appearsthat Stephen returned to Towner Park in 1992, when he separated from his wife. Thereafter, Stephen lived mostly at Towner Park untilthe property was sold in 2011. [24] Rosemary and Nicholas lived at Towner Park until his death in 1988. After Nicholas’ death, Rosemary continued to live atTowner Park until her final admission into hospital in April 2010.

ISSUES [25] The issue in this case is whether an order should be made under the WVA varying the Will, and if so, in whose favour the Willshould be varied. [26] The plaintiffs seek an order varying the Will to give Wendy 20% of the residue and to divide the balance equally amongRosemary’s eight other children. Stephen seeks an order varying the Will to give him 50% of the residue of the estate. [27] Karen and Katrina support the Will as drawn and submit that the action and counterclaim should be dismissed. STEPHEN’S LEGAL CLAIM [28] In Tataryn v.

Tataryn Estate, (SCC), [1994] 2 S.C.R. 807, [Tataryn] the Court set out a hierarchy of legal andmoral claims that a testator must address in making her will. The Court held that a testator must satisfy her legal obligations beforeaddressing her moral obligations.

Therefore, Tataryn requires me firstly to determine if there are any legal claims that Rosemary failed tomeet in the Will. [29] Only Stephen asserted that he had a legal claim that Rosemary failed adequately to address in the Will. [30] At 821-822 of Tataryn, McLachlin C.J.C. gave some guidance as to what legal obligations are relevant to exercising jurisdictionunder the WVA as follows: The legal obligations on a testator during his or her lifetime reflect a clear and unequivocal social expectation, expressed throughsociety's elected representatives and the judicial doctrine of its courts.

Where provision for a spouse is in issue, the testator's legalobligations while alive may be found in the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp), family property legislation and the law ofconstructive trust: Pettkus v. Becker, (SCC), [1980] 2 S.C.R. 834; Sorochan v. Sorochan, (SCC), [1986]2 S.C.R. 38; Peter v. Beblow, (SCC), [1993] 1 S.C.R. 980. Maintenance and provision for basic needs may besufficient to meet this legal obligation. On the other hand, they may not.

Statute and case law accepts that, depending on the length of therelationship, the contribution of the claimant spouse and the desirability of independence, each spouse is entitled to a share of the estate.Spouses are regarded as partners. As L'Heureux-Dubé J. wrote in Moge v. Moge, (SCC), [1992] 3 S.C.R. 813, at p. 849: ... marriage is, among other things, an economic unit which generates financial benefits .... The [Divorce] Act reflects the fact that intoday's marital relationships, partners should expect and are entitled to share those financial benefits.

The legal obligation of a testator may also extend to dependent children. And in some cases, the principles of unjust enrichment mayindicate a legal duty toward a grown, independent child by reason of the child's contribution to the estate.

The legal obligations whichsociety imposes on a testator during his lifetime are an important indication of the content of the legal obligation to provide "adequate,just and equitable" maintenance and support which is enforced after death. [31] In his counterclaim, Stephen alleges that in or about 1983, he made an agreement with Nicholas and Rosemary to the effect thatif he maintained the Towner Park property, Rosemary would transfer Towner Park to him on her death, presumably by will.

Stephenalleges that he carried out his part of the agreement by remaining at Towner Park, maintaining it and providing care to Rosemary in herlater years. Stephen also claims that his contribution to the farm operated at Towner Park enabled Rosemary to remain living there andthat her estate has been unjustly enriched as a result. [32] Stephen’s case is that as a result of the agreement and of the work that he did on Towner Park over 27 years, Rosemary had alegal obligation to him that she failed adequately to address in the Will.

As indicated above, the remedy he sought at trial was an orderthat he receive 50% of the residue of the estate. [33] Stephen testified that he spent much of his adult life living and taking care of Towner Park. He stated that as early as 1975,Nicholas took him out of school for the 1975-76 school year to assist in the building of the house at Towner Park. He did howeveracknowledge that he had no objection to missing that school year, and that in fact, in his words, he embraced it. [34] Stephen left Towner Park initially in about 1978. For much of the period from 1978 to 1991-92 he lived elsewhere. During this

period he was involved in three relationships, one of which resulted in a short marriage. [ 35 ] Stephen’s evidence about dates was somewhat vague throughout his testimony. In his examination-in-chief he stated that in 1988 his father asked him to come for dinner. I note that this places the date of the agreement some five years later than the date alleged in his counterclaim. He also said that by that time his relationship with his wife was on the rocks and that they had had several separations.

However, in cross-examination he agreed that he did not marry until 1990 and that two children were born as a result of that marriage. The evidence discloses that one was born in February 1992 and one in July 1993. [ 36 ] While he was vague about dates, Stephen was quite definite about the agreement he says he made with Rosemary and Nicholas. Stephen testified that about a year before Nicholas died he phoned Stephen and invited him to dinner. Stephen agreed and came to Towner Park as arranged. Rosemary was present throughout the meeting. [ 37 ] Stephen’s evidence about the dinner is as follows.

Nicholas asked what Stephen’s future plans were. Stephen said that he did not know. Nicholas told him that he had a year to live. He said that Rosemary wanted to continue to live at Towner Park. Nicholas then told Stephen that if he stayed on the property and continued to work on the farm, Towner Park would be left to him. Stephen asked about Karen and Katrina and Nicholas said that two lots that he and Rosemary owned in Corpus Christi, Texas, would go to them. [ 38 ] Stephen says that following Nicholas’s death in 1988, he took over the maintenance of the farm and buildings at Towner Park.

He testified that he cultivated various crops on the land and kept the soil in good condition by ensuring crops were properly rotated. Stephen said that he and Rosemary worked as a team but that as she aged he assumed more responsibility for managing the farm and property. He stated that in her final illness he provided support to her. As an example, he said that he built a wheel chair ramp to provide access to the house. [ 39 ] Stephen said that he was not paid for any of his labour on the farm but agreed that he usually did not pay rent while living there.

His position is that his efforts enabled Rosemary to remain at Towner Park and preserved the asset for the estate. As indicated above, the value of Towner Park increased from $46,500 in 1974 to $952,000 when it was sold by Rosemary’s estate. [ 40 ] Stephen described his relationship with Rosemary after Nicholas died as something like a partnership in which he did the heavy outdoor work and she looked after the home and managed the money.

His position is that he dedicated himself to the maintenance and upkeep of Towner Park without receiving any compensation and thereby enriched the estate. [ 41 ] Stephen’s counsel submits that the evidence in this case established all of the elements necessary to establish a claim for unjust enrichment and thereby imposed a legal obligation on Rosemary that she did not adequately address in the Will.

In accordance with the principles set out in Tataryn , his counsel submits that the appropriate remedy is to vary the Will to fulfill this obligation. [ 42 ] Stephen’s alternative position is that the alleged agreement with Nicholas and Rosemary is not essential to the remedy he seeks and that that remedy can be based on the benefits that he alleges he bestowed on the estate alone. However, I think that either ground for finding a legal obligation is dependent on my accepting Stephen’s evidence. [ 43 ] I have concluded that I am unable to accept Stephen’s evidence where it is uncorroborated.

In particular, I reject his evidence that he made the agreement he alleges he made with Nicholas and Rosemary. The way in which Stephen described the alleged meeting smacked of embellishment. He stated that the air was thick that evening, and that there was “something in the air”. He also said that by that time his relationship with his wife was on the rocks and that they had separated on numerous occasions.

I note that Stephen had not yet married his wife in 1988. [ 44 ] I accept Karen’s evidence that in April 2010, while Rosemary was hospitalized, Stephen told her that Nicholas had promised him Towner Park on his deathbed, but that when she asked Rosemary about this promise, Rosemary told her she knew nothing of any such arrangement. Stephen gave Karen a quite different version of how Towner Park was promised to him from the one he gave in Court.

I accept Karen’s evidence that she telephoned Stephen to tell him that Rosemary knew nothing of any such arrangement and Stephen replied that she (Rosemary) was not there when Nicholas said it. [ 45 ] I conclude that I can take Rosemary’s statement to Karen into account in assessing this issue.

Section 5 of the WVA is broad enough to permit me to consider this evidence as it relates directly to the issue of her reasons for making the dispositions in the Will. I am also of the view the evidence, although hearsay, meets the criteria of reliability and necessity to make it admissible as set out in R. v. Khan , [1990] 2 S.C.R. 53 I. As no counsel objected to the admissibility of this evidence I need say nothing further about its admissibility. [ 46 ] The version of the agreement related by Stephen to Karen is markedly different than the one he testified to in court.

In fact, he has put forward three different versions of the agreement. In his counterclaim, he alleged the agreement was made with Nicholas and Rosemary in 1983, five years before Nicholas died or became ill. While Rosemary was still alive, Stephen told Karen that he had been promised Towner Park on Nicholas’s death bed. When confronted with Rosemary’s statement that she knew nothing of any such agreement, he told Karen that Rosemary had not been present when it was made.

At trial he testified that the agreement was made in Rosemary’s presence about a year before Nicholas died. [ 47 ] It is also clear that Rosemary’s actions throughout the time after Nicholas’ death were inconsistent with the agreement alleged by Stephen. In 1989, she executed a will in substantially the same form as the Will. If Stephen’s evidence is to be accepted, the 1989 will was tantamount to a fraud on him.

I think it far more likely that the 1989 will was in part the product of discussions between Nicholas and Rosemary prior to Nicholas’s death. [ 48 ] Stephen has admitted to struggling with alcohol abuse throughout his adult life. This affliction may have some effect on his ability to give reliable evidence. I also note that Stephen’s evidence in other respects lacks corroboration. He testified that he shared revenue from the garlic crop on the property with Rosemary. However, Rosemary’s accounts show no such revenue.

Stephen also testified to making payments and repayments of advances to Rosemary, but again, there is no documentary confirmation of this evidence. [ 49 ] Further, there is no documentary evidence concerning the alleged agreement. Stephen obviously had a strong motivation to

fabricate evidence of an agreement. For these reasons, I reject Stephen’s evidence that there was any agreement or understanding to leave Towner Park to him as he alleges. [ 50 ] That finding, however, does not dispose of Stephen’s legal claim. He also bases a legal claim on the principles of unjust enrichment. Stephen’s position is that his unpaid services permitted Rosemary to continue to live at and retain ownership of Towner Park to the date of her death.

He submits that the three elements necessary to found a claim in unjust enrichment are present in this case: enrichment; deprivation; and lack of a juridical reason. [ 51 ] There is little evidence to corroborate Stephen’s testimony about what occurred at Towner Park in the period between Nicholas’ and Rosemary’s deaths. As I have already indicated, I do not find Stephen to be a credible witness. I therefore treat his evidence as to the contribution he made to the maintenance of Towner Park with considerable scepticism. There was some limited evidence about Towner Park from disinterested witnesses.

In particular Mr. Henley, Rosemary’s lawyer and an executor, Hildegard Thompson, a friend and neighbour and Alice Kubek, Rosemary’s accountant, gave evidence as to the activities and state of repair of Towner Park throughout the relevant period. [ 52 ] Based on all of the evidence I make the following findings as to the history of Towner Park and Stephen’s involvement in it. [ 53 ] It is quite clear that Nicholas and Rosemary intended to make Towner Park their retirement home. To that end, Nicholas sold all of his properties in Esquimalt.

I accept Stephen‘s evidence that he helped his father clear overgrowth and build the house and barn on the property. However, I do not accept his evidence that his father took him out of school for a year to help with these tasks. I think it more likely that Stephen’s withdrawal from school in 1975-76 was related to the behavioural problems that he has manifested throughout his life. As Stephen put it in his own evidence, he did not begrudge but embraced taking the year off. Given this finding, the opinion of Mr.

Gary Nix as to the impact of missing a school year is of no assistance in this case. [ 54 ] Stephen left Towner Park in or about 1978, at about the time of his first criminal charges. He lived away until after Nicholas’ death in 1988. During that time, he married and held several full or part time jobs and continued to have problems with the law, mostly related to his alcohol abuse. [ 55 ] Stephen married in 1990. As best as I can discern from the evidence, his relationship with his wife ended probably in 1992 or 1993.

Around the same time he returned to Towner Park and from that time forward usually lived there, although there were periods when he lived elsewhere. [ 56 ] There are two views about the role played by Stephen at Towner Park from his return there to the date of Rosemary’s death. The first is that urged on me by his counsel, Mr. Lott; that Stephen stepped into his father’s shoes and took over the responsibility for running the farm and maintaining the family home.

The second is that contended for by his sisters’ counsel; that Stephen essentially used the Towner Park property as a place to live and carry on his own passion for farming and became to a large extent economically dependent on Rosemary. The sisters acknowledge that Stephen did perform some services for Rosemary but submit that those services were more analogous to those of a hired hand than a partner in the running of the farm and household. They also submit that he received more benefits from Rosemary than he provided to her. [ 57 ] In support of the first view, Mr.

Lott relies on Stephen’s evidence, on certain statements made by Rosemary to the effect that she could not have continued to live at Towner Park without Stephen and on the logistics of managing a five-acre parcel of property.

The sisters rely on the documentary evidence that shows that the farming operations never produced more income than expense, the evidence of diminishing farming activity and slowly deteriorating state of repair of the buildings after Nicholas’s death, the bank records that show that Rosemary made significant advances to Stephen, the fact that the predominant sources of income were Rosemary’s pension and employment income and the run down state of Towner Park at Rosemary’s death. [ 58 ] In answer to the assertion that Stephen received more benefit than he contributed, Mr.

Lott submitted that the issue of mutual exchange of benefits in an unjust enrichment claim should be addressed only at the remedy stage and not at the stage of determining whether there was an enrichment and a corresponding deprivation. He relied on Wilson v. Fotsch , 2010 BCCA 226 , 319 D.L.R. (4th) 26, [ Wilson ]. Wilson was referred to with approval by the Court in Kerr v. Baranow , 2011 SCC 10 , [2011] 1 S.C.R. 269 [ Kerr ].

What I take from Kerr is that in an unjust enrichment claim, the question of reciprocal benefits should usually be addressed at the remedy stage and, exceptionally, at the stage of considering whether there is a juridical reason for the enrichment.

Both Wilson and Kerr deal with marriage-like relationships, but Kerr makes it clear that this analysis applies in all cases of unjust enrichment. [ 59 ] However, Kerr also makes it clear that to justify a remedy in unjust enrichment in a marriage-like relationship, the court must find that the parties engaged in a joint family venture that has created wealth and that one party has ended up with a disproportionate share of that wealth.

In this case, I can find no reliable evidence to support a conclusion that Stephen’s efforts made any material contribution to any accumulation of wealth by Rosemary. [ 60 ] The wealth that was accumulated in this case was due to the joint efforts of Nicholas and Rosemary and to the rapid escalation of real estate values experienced after Nicholas’ death. I have no doubt that Nicholas was the driving force behind the development of the farm and home at Towner Park.

The farming activities carried on the land played no role in the accumulation of that wealth after Nicholas’s death. [ 61 ] Rosalyn, who is a book keeper, analyzed Rosemary’s bank and accounting records for the period from 1992 to the date of her death and farm ledgers and other financial records from 1989 to death. These records show that from 1989 to death Rosemary paid some $50,000 either directly to or on behalf of Stephen.

They also show that Rosemary paid virtually all of the household expenses for Towner Park in that period. [ 62 ] The farm ledgers show that until 1993, the farm revenue came mainly from strawberries, which were no longer cultivated after that year. From 1994 to 2007, very modest revenue was received primarily from the sale of lambs. Notably, Rosemary recorded no garlic revenue even though Stephen testified that from some time in the 1990s he harvested and sold significant amounts of it. 2007 was the last year in which any farm revenue is recorded.

This evidence was confirmed by Alice Kubek, Rosemary’s accountant, who testified that

Rosemary ceased farming activity at that time. [63] In addition, Dale Henley, Rosemary’s solicitor and one of her executors, testified that when he visited Towner Park after herdeath, the land was in pasture and that he saw no signs of active cultivation. He also testified that on behalf of the estate he had to hire acleanup crew and rent a refuge bin to prepare the property for listing for sale. [64] The records confirm that Rosemary’s primary source of income from 1989 to death came from pensions and her own earnings.There are no records of any financial contribution from Stephen in that period.

Stephen testified that revenue from the farm was theresult of his effort, and that it “fed us”. However, the records show this was not the case. [65] Stephen testified that he contributed the garlic revenue, which he estimated to be $10,000 to $20,000 annually, to the householdincome but there is no record to support this. Rosemary kept records of farm income and expenses. They record no garlic revenue. Apartfrom Stephen’s testimony, there is no evidence that Rosemary concealed or failed to report income.

It is also clear that she had littleincentive to do so, given her modest total income and the advantages of maintaining farm status for Towner Park. [66] The evidence supports the conclusion that farming activities after Nicholas’ death made no material contribution to Rosemary’sestate.

Rosemary’s records also indicate that if there was garlic revenue, Stephen kept it for himself. [67] For these reasons I conclude that Stephen has failed to establish that he made any material contribution to Rosemary’saccumulation of wealth and that he has therefore failed to establish the first element of a claim for unjust enrichment. [68] I also find there is no basis for concluding that Rosemary did not provide Stephen with a share of her estate proportionate to anycontribution he may have made to its accumulation.

In addition to the financial assistance provided to Stephen while she was alive,Rosemary left 25% of the residue of her estate to him. In my view, that gift adequately addressed any legal claim that Stephen had againsther estate. MORAL CLAIMS [69] I therefore turn to a consideration of the moral claims of the parties. [70] The plaintiffs’ position is that the scheme of distribution in the Will did not adequately discharge Rosemary’s moral obligationto them and therefore did not make adequate, just and equitable provision for them.

They submit that a gift of only 4.17% of the estate toeach of them was not adequate, just and equitable. In their submission, Rosemary ought to have made special provision for Wendy byleaving her 20% of the estate and divided the balance equally among the eight other children. [71] The principles to be applied in a WVA application are set out in Tataryn. In that case, McLachlin C.J.C. set out the two interestsprotected by the WVA at 815 and 816 as follows: The two interests protected by the Act are apparent.

The main aim of the Act is adequate, just and equitable provision for the spousesand children of testators. The desire of the legislators who conceived and passed it was to "ameliorat[e] ... social conditions within theProvince". At a minimum this meant preventing those left behind from becoming a charge on the state. But the debates may also be seenas foreshadowing more modern concepts of equality. The Act was passed at a time when men held most property.

It was passed, we aretold, as "the direct result of lobbying by women's organizations with the final power given to them through women's enfranchisement in1916". There is no reason to suppose that the concerns of the women's groups who fought for this reform were confined to keepingpeople off the state dole. It is equally reasonable to suppose that they were concerned that women and children receive an "adequate, justand equitable" share of the family wealth on the death of the person who held it, even in the absence of demonstrated need. The other interest protected by the Act is testamentary autonomy.

The Act did not remove the right of the legal owner of property todispose of it upon death. Rather, it limited that right.

The absolute testamentary autonomy of the 19th century was required to yield to theinterests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was"adequate, just and equitable in the circumstances." And if that testamentary autonomy must yield to what is "adequate, just andequitable", then the ultimate question is, what is "adequate, just and equitable" in the circumstances judged by contemporary standards.Once that is established, it cannot be cut down on the ground that the testator did not want to provide what is "adequate, just andequitable". [Emphasis in original] [72] Tataryn makes it clear that a testator must make adequate, just and equitable provision for her children.

This obligation restrictsher testamentary autonomy but does not negate it. At 822 of Tataryn, McLachlin C.J.C. stated with respect to moral duties as follows: For further guidance in determining what is "adequate, just and equitable", the court should next turn to the testator's moral duties towardspouse and children. It is to the determination of these moral duties that the concerns about uncertainty are usually addressed. Therebeing no clear legal standard by which to judge moral duties, these obligations are admittedly more susceptible of being vieweddifferently by different people.

Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought. Forexample, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouseafter his death, a strong moral obligation to do so exists if the size of the estate permits. Similarly, most people would agree that an adultdependent child is entitled to such consideration as the size of the estate and the testator's other obligations may allow.

While the moralclaim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permitsand in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made:Brauer v. Hilton (1979), (BC CA), 15 B.C.L.R. 116 (C.A.); Cowan v. Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.),aff'd (1990), 37 E.T.R. 308 (B.C.C.A.); Nulty v. Nulty Estate (1989), (BC CA), 41 B.C.L.R. (2d) 343 (C.A.). See alsoPrice v. Lypchuk Estate, supra, and Bell v.

Roy Estate (1993), (BC CA), 75 B.C.L.R. (2d) 213 (C.A.) for cases where

the moral duty was seen to be negated. [Emphasis in original] [73] In Hall v. Hall, 2011 BCCA 354, 22 B.C.L.R. (5th) 136, [Hall], the court referred to its early decisions of Bell v. Roy Estate(1993), (BC CA), 75 B.C.L.R. (2d) 213 [Bell] and Kelly v. Baker (1996), (BC CA), 82 B.C.A.C.150, [Kelly] at para. 43 as follows: 43 Jean gave three reasons for disinheriting Tony. The first was his lengthy estrangement from her. The second was her view that hewas capable of being financially independent.

The third was the comparative love and support she had received from Paul and his family,whom she viewed as her “only family”. To succeed in his challenge to her will, Tony must establish these reasons were false orunwarranted: Bell v. Roy Estate (1993), (BC CA), 75 B.C.L.R. (2d) 213 (C.A.) at para. 36. In considering thatproposition, it is not necessary to find the reasons were justifiable. It is enough if they were factually valid, and rational in the sense ofhaving a logical connection to the act of disinheritance: Kelly v. Baker (1996), 82 B.C.A.C.150 at para. 58. [74] In McBride v.

Voth, 2010 BCSC 443, 6 B.C.L.R. (5th) 328, Ballance J. expressed a concern that the analytical framework setout in Kelly and Bell may be difficult to reconcile with Tataryn in that it effectively precludes an assessment of whether the testator’sreasons for discrimination among beneficiaries are objectively justifiable from the standpoint of a contemporary judicious parent. [75] However, in Hall, the court followed Bell and Kelly without criticism. I am of course bound by these decisions.

They addressthe proper approach to be taken in reviewing the testator’s reasons for departing from an equal division of her estate amongst herchildren when need is not an issue. [76] Bell, Kelly and Hall provide the analytical framework for determining whether the circumstances are such as to negate themoral obligation that would otherwise be owed to adult independent children. In the first instance it is for the testator to determinewhether such circumstances exist. If the testator makes such a determination, it is the task of the court to determine whether her reasonswere valid and rational.

As stated in Hall, the onus is on the claimant to show that the reasons given for disinheriting are false orunwarranted. If the court determines that the reasons are valid and rational, there is no basis to interfere with the testator’s decisionwhich must be regarded as a valid exercise of testamentary autonomy. [77] In this case, Rosemary did make some provision for each of her adult children. She did not treat them equally but divided theminto categories; those of her marriage to Ronald and those of her marriage to Nicholas.

She divided 75% of her estate among the childrenof her marriage to Nicholas and 25% among the children of her marriage to Ronald. [78] The plaintiffs make two principal attacks on this distribution of the estate. [79] Firstly, they submit that the reasons for the unequal distribution were not valid and rational.

They submit that in fact Rosemarywas motivated to favour Nicholas’s children over Ronald’s because of her deep seated hatred of Ronald arising from the deplorable wayhe treated her during their marriage. [80] Secondly, they submit that Rosemary failed to take Wendy’s particular circumstances into account when assessing the moralclaims of her children. They say that Rosemary did not make adequate provision for Wendy, who struggles with psychological andphysical problems that have placed her in financial need. She has lived on a disability pension since 1991.

Rosemary did provide somemodest financial assistance to Wendy over the years. I infer from that that she was aware of Wendy’s difficult circumstances when sheexecuted the Will in 2009. [81] In support of the first ground of attack, the plaintiffs point to the way that Rosemary treated them as children. They all testifiedthat they suffered physical and psychological abuse at her hands. According to them, Rosemary told them that they would end up liketheir father, living under the Johnson Street Bridge. She told them that they would likely end up as prostitutes.

They point to Rosemary’srefusal to help them or even accept their reports of sexual abuse by Nicholas. They also make reference to a letter written by Rosemary toRhonda in 1971 in which Rosemary makes her disdain for Ronald very clear. [82] The plaintiffs argue that Rosemary’s decision to limit their participation in her estate is simply a continuation of her ill treatmentof them.

They say that in effect, Rosemary transferred her hostility to Ronald onto them and has inequitably punished them for no reasonother than the fact that Ronald was their father. [83] I have concluded that the estate distribution set out in the Will was not motivated by spite or hatred of Ronald and his children. Iconclude that the reason Rosemary gave for the distribution scheme was genuine and valid. That is, it was in fact based on distinguishingbetween Ronald’s and Nicholas’ children.

I also accept that it was the joint efforts of Nicholas and Rosemary that was the foundation ofthe estate that Rosemary possessed on her death. Towner Park was purchased from funds generated from the sale of properties owned byNicholas. Nicholas and Rosemary built the home on Towner Park using the same funds as well as Nicholas’ labour.

On his death, all ofNicholas’ estate passed to Rosemary by right of survivorship. [84] I consider that the fact that the estate was largely created by Nicholas and was in no way attributable to Ronald’s efforts is arelevant circumstance that Rosemary was entitled to take into account in making the Will and that her decision to do so was thereforenatural. Recognizing the greater contribution of the parent of one group of children over the parent of another was accepted as a relevantcircumstance in Saugestad v. Saugestad, 2008 BCCA 38, 77 B.C.L.R. (4th) 170 at para. 38.

Like the predeceased mother in Saugestad,Nicholas could reasonably have expected that his efforts would benefit his children. [85] I have also concluded that the abuse testified to by the plaintiffs is not a proper ground to vary the Will. This is made clear in thedecision of Boyd J. of this court in W.G. Estate v. T.G., [1998] B.C.J. No. 2369 at para. 79 as follows:

79 I have made no special additional awards to any of the children on the basis of any moral obligations. By virtue of the testator'sdifficult personality, all of the testator's children experienced relatively dysfunctional childhoods. The first family essentially complainthey were financially, if not emotionally deprived and abandoned, following their parents' divorce. S.G. maintains that he was bothphysically and sexually abused. While his evidence was extremely disturbing I make no finding concerning his credibility. Evenassuming the truth of his allegations, the result remains unaffected.

A wills variation action is not a vehicle to redress any past wrongsnor to notionally award damages to an aggrieved claimant who suffered ill treatment at the hands of the testator (Brauer v. Hilton, (1979) (BC CA), 15 B.C.L.R. 116 (B.C.C.A.)). [86] The WVA should not be used as a vehicle to award damages for past bad behaviour on the part of the testator, although it is ofcourse quite legitimate to take the circumstances of a child or spouse into account and in so doing consider whether those circumstancesarose as a result of some behaviour of the testator that might give rise to a moral claim.

In this case I can find no sufficient evidence of alink between Rosemary’s treatment of her children and any adverse circumstances in which they find themselves. [87] In this case, the plaintiffs other than Wendy are not in need. With respect to those plaintiffs, I can see no basis for concludingthat Rosemary has not made adequate, just and equitable provision for them in the Will in the circumstances that prevailed at her death. Ifind that the reason that Rosemary gave for an unequal division to be valid and rational with respect to those five plaintiffs.

I thereforecan see no reason to disturb the basic scheme of the Will in their favour. [88] However, I am of the view that Rosemary has not discharged her moral obligation to Wendy. It is apparent that Rosemary basedher decision as to how to divide her estate based on who was the father of each child. She decided that Nicholas’s children should receivethe bulk of her estate because Nicholas’s work and effort had been largely responsible for its creation.

I think that in so doing she failed toask herself whether she had made adequate provision for each individual child, given their individual circumstances, size of the estateand the large number of children who were to share in it. [89] I place some significance on the fact that the provisions of the Will did not change from those set out in her 1989 will. At thattime, Wendy was not yet in receipt of a disability pension and the estate was very modest given the number of children.

I think that a justand judicious parent would have revisited the terms of her will from time to time to determine whether she made adequate provision foreach of her children. In this case, there is no indication that Rosemary did so with respect to Wendy. [90] I am also of the view that the estate is sufficiently large to accommodate a bequest to Wendy to address her circumstances. [91] I therefore conclude that the Will must be varied to make adequate, just and equitable provision for Wendy. However, in sodoing I think I should otherwise respect Rosemary’s testamentary autonomy.

In particular, I am satisfied that Rosemary had a valid andrational basis for discriminating between Nicholas’s and Ronald’s children, and for the extent to which she did so discriminate. [92] I think that the objects of the WVA can be achieved by making an order that the Will be varied as follows: (

a) to provide for thepayment of a specific bequest to Wendy in the amount of $100,000; (

b) that Nicholas’ children share 77.5% of the residue after paymentof the specific bequest to Wendy; and (

c) that the plaintiffs other than Wendy share 22.5% of that residue. [93] This variation will result in all of the children, other than Wendy, bearing some portion of her specific bequest. It will respectRosemary’s testamentary autonomy by leaving a larger share of the estate to Nicholas’s children. [94] The $10,000 advanced to Stephen during the trial will of course be paid from his share of the estate. [95] My present view is that the costs of all parties except Stephen should be paid out of the estate and that Stephen should bear hisown costs. However, the parties will have liberty to agree otherwise or apply for a different order as to costs. “The Honourable Mr. Justice Sewell”