McMain v. Leblanc, 2013 BCSC 891

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: McMain v. Leblanc, 2013 BCSC 891 Date: 20130222 Docket: 11-3229 Registry: Victoria Between: Andrew Paul McMain Plaintiff And: Barbara Leblanc, and Barbara Leblanc as Administrator of the Estate of Alan McMain, Deceased Defendant Before: The Honourable Mr. Justice R.A.M. Baird Oral Reasons for Judgment Counsel for the Plaintiff: M.R. Mark Counsel for the Defendant: P.K. McMurchy Place and Dates of Hearing: Victoria, B.C. February 18, 19, 20, 21, 2013 Place and Date of Judgment: Victoria, B.C.

February 22, 2013 Introduction [ 1 ] The plaintiff, Andrew Paul McMain, has brought this action under s. 2 of the Wills Variation Act , R.S.B.C. 1996 c. 490 (“the Act” ) claiming that his natural father, Alan McMain (“the testator”) left a will (“the will”) that does not make adequate provision for his proper maintenance and support. He is seeking an order that the will be varied to make adequate, just and equitable provision for him from the testator’s estate. [ 2 ] The defendant, Barbara Leblanc (“the defendant”), is the testator’s niece, Administrator, and the sole beneficiary under the will.

She takes the position that the action should be dismissed because the testator gave valid and rational reasons for disinheriting the plaintiff which negate his claim for a variation of the will in his favour. [ 3 ] In the alternative, she submits that the plaintiff’s claim should be characterized as a weak or tenuous moral claim entitling him to a maximum of 1/3 of the estate residue. Background [ 4 ] The testator died on March 19, 2011 at Courtenay, B.C. The will was dated September 9, 2005.

The testator’s explanation for disinheriting the plaintiff is contained in paragraph five of the will which says, quite simply, “I MAKE NO PROVISION in this my will for my son ANDREW PAUL McMAIN who lives in England as I have had limited contact and have not seen him for over 20 years.” [ 5 ] The net value of the estate is approximately $330,000 in cash deposited in the trust account of the testator’s solicitors. [ 6 ] It is to be noted, as well, that the defendant was the designated beneficiary of a registered retirement income fund (“the RRIF”) of the testator, under which she was paid the sum of $121,306 net of taxes, which were paid by the estate.

Law [ 7 ]

Section 2 of the Act provides: Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the testator's spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator's estate for the spouse or children.

[8]

Section 5 provides:

(1) In an action under

section 2 the court may accept the evidence it considers proper of the testator's reasons, so far as ascertainable, (

a) for making the dispositions made in the will, or (

b) for not making adequate provision for the spouse or children, including any written statement signed by the testator.

(2) In estimating the weight to be given to a statement referred to in subsection (1), the court must have regard to all thecircumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement. [9] In the recent case of Graham v. Chalmers, 2010 BCCA 13, Kirkpatrick J.A. referred to the leading authority interpreting theAct, Tataryn v. Tataryn Estate, (SCC), [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 theprinciples applicable to the Wills Variation Act. Tataryn continues as the governing authority. On an application to vary a will “the courtmust ask itself whether the will makes adequate provision and if not, order what is adequate, just and equitable. These are two sides ofthe same coin” (Tataryn at 814). “Adequate, just and equitable” is determined in the specific circumstances and in light of contemporarystandards. Against this consideration is balanced the principle of testamentary autonomy.

However, testamentary autonomy must ultimately yield towhat 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 societalnorms, and wrote: [28] ... Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations which the law wouldimpose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legalobligations.

The second type of norms are found in society's reasonable expectations of what a judicious person would do in thecircumstances, by reference to contemporary community standards. These might be called moral obligations, following the languagetraditionally used by the courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstancesof the case. [11] In this case, the plaintiff was the testator’s only child. No other person was entitled to make a claim under the Act. The plaintiffdid 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 testatorrespecting the plaintiff, but submitted that the testator’s written reasons for disinheriting the plaintiff were valid and rational, and that theplaintiff had failed to discharge the burden of establishing that those reasons were false or unwarranted. Accordingly the defendantsubmitted that the testator’s moral duty in respect of the plaintiff was negated: Bell v.

Roy Estate (1993), (BC CA), 75B.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 logicalconnection between them and the act of disinheritance: Kelly v. Baker, (BC CA), [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, thedefendant took the position that the plaintiff’s moral claim to provision from the estate, if not negated, was tenuous or weak, and theplaintiff 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 partiallytrue, and asked that all or substantially the all of the net estate should be awarded to him. [16] I wish to make it clear that I have read and considered all of the authorities submitted to me by counsel, especially Tataryn,supra, Clucas v.

Royal Trust Corporation, (BC SC), [1999] B.C.J. No. 436, particularly the often quoted para. 12thereof, containing a non-exhaustive list of factors that may support or negate a claim of moral duty towards an adult child, and on thesame subject the additional factors referred to in McBride v. Voth, 2010 BCSC 443 at paras. 129-135. [17] I have also had particular regard to Gray v. Nantel, 2002 BCCA 94, which, factually speaking, is as close to the case at bar asany authority to which I was referred, and in my respectful view the reasoning articulated in that decision is applicable to thecircumstances before me.

Evidence [18] The testator was an Englishman from County Durham. In 1965, when the testator was approximately 26 years old, he met andbegan dating the plaintiff’s mother, then aged 18. On June 14, 1967, the couple married at Darlington, County Durham. The plaintiff wasborn on October 4, 1967. Mrs. Rees Fisher [19] The plaintiff’s mother, Mrs. Pauline Ann Rees-Fisher (“Mrs. Rees-Fisher”) testified that, after they were married, she and thetestator bought a semi-detached house in Darlington where the plaintiff spent his first months of life.

[ 20 ] The marriage was not a happy one. Mrs. Rees-Fisher testified that the testator was moody, controlling, and difficult to get along with. She left him in April 1969 vowing never to return. She took the infant plaintiff with her. She lived with her mother until January 1970, when she resolved to move to London. She wanted to take the infant plaintiff with her, but the testator would not permit it. She moved to London in any event, leaving the plaintiff with the testator for a number of months in Darlington. [ 21 ] In short order, however, in October 1970, Mrs.

Rees-Fisher brought a petition in the High Court of Justice seeking custody of the plaintiff. The testator opposed the petition and sought custody for himself. Mrs. Rees-Fisher’s petition was granted. The testator was ordered to hand over the plaintiff within the week, and was granted reasonable and generous access to him. The testator was also ordered to pay £4 per week in child maintenance. A month or so later the weekly amount of child maintenance payable was reduced to £3 per week. [ 22 ] Mrs. Rees-Fisher testified that the testator contested the custody litigation vigorously and was upset by its result.

In the early going at least, he paid his maintenance regularly and visited the plaintiff when he could. This was not often, as Darlington is a long way from Edgware, North London, where Mrs. Rees-Fisher had moved to establish a residence with her new husband. [ 23 ] Sometime in 1971 the testator stopped paying maintenance for a time, but the arrears were brought up to date after Mrs. Rees- Fisher’s solicitor sent the testator a warning letter. [ 24 ] In early 1972, however, when the plaintiff was between the ages of four and five years old, the testator emigrated to Canada.

He left England without leaving a forwarding address. He sold the matrimonial home for a profit and kept the proceeds for himself. Furthermore he paid no child maintenance during the remainder of the plaintiff’s minority. [ 25 ] Neither Mrs. Rees-Fisher nor the plaintiff heard anything from the testator until the summer of 1975, when the testator showed up unannounced at Mrs. Rees-Fisher’s home in Edgware asking to see the plaintiff, then aged seven. Mrs. Rees-Fisher was somewhat taken aback by this, but permitted the testator to take the plaintiff on an outing.

It was a brief visit, after which the testator disappeared again leaving no impression when he might return, if ever. [ 26 ] The testator was not heard from again until the summer of 1982, when once again he turned up unexpectedly on Mrs. Rees- Fisher’s Edgware doorstep. This time he had two brief visits with the plaintiff separated, I gather, by a return sojourn to Darlington to see his family. The testator’s second wife, Betta, was with him. [ 27 ] During these visits the testator expressed an interest in having the plaintiff come to stay with him the following summer in Canada.

He offered to pay for the plaintiff’s travel and expenses. Mrs. Rees-Fisher was favourably disposed to this arrangement but only if the testator gave her his address and contact details. The testator provided this information the following year. [ 28 ] It turned out that the testator was living in Fort Nelson, B.C. During the month of August 1983, when the plaintiff was 15 years old, he did, indeed, travel to Canada to visit with his father, who collected him at the airport in Edmonton, took him to Vancouver, and then to Fort Nelson. [ 29 ] Mrs.

Rees-Fisher testified that the plaintiff returned home happy and contented. He had got along with the testator. She was hoping that this might be the beginning of a closer relationship between father and son. But after the plaintiff returned to London the silence resumed. The testator expressed no further interest in seeing the plaintiff. Years passed without any contact. [ 30 ] Mrs. Rees-Fisher testified that she next heard from the testator in approximately 1989, when he telephoned her “out of the blue”. He told her that the plaintiff had been in touch with him and expressed an interest in coming to Canada.

The testator was opposed to the idea, however, and that was that. This was the last Mrs. Rees-Fisher ever heard from the testator. [ 31 ] Overall, Mrs. Rees-Fisher thought the testator’s disappearance from the plaintiff’s life was odd and surprising, especially after he had made such strenuous efforts to obtain custody of the plaintiff before he left England. [ 32 ] She confirmed that, other than the testator’s payment of the plaintiff’s travel and expenses to Canada in 1983, she received no maintenance from the testator for the plaintiff after he departed the United Kingdom.

She consulted with a solicitor to see what might be done but was told that it would cost too much to locate the testator. Andrew McMain [ 33 ] The plaintiff is now 45 years old now. He lives in Chesham, Buckinghamshire, and has done so for the past 16 years. He is married with three adolescent children, all of whom are healthy and well. He is unemployed at the moment. He last worked on a casual basis at a supermarket. His wife is a nurse who works in a local hospital and has an annual income of approximately £40,000. [ 34 ] The plaintiff was educated in London, and obtained his certificate of secondary education.

He worked for a couple of years in a supermarket after leaving school. He joined the Territorial Army, first as a reservist and then full-time, and served until around 1996. [ 35 ] After his discharge, he worked as a security guard, then as a postman. He took the preliminary steps towards becoming a member of the Metropolitan Police, but failed a couple of required exams and was not taken on. He went back to the post office for a time. He was a house husband from 2003 to 2006 while his wife went to school to train as a nurse.

Through her he became interested in the health care field himself and worked for a time as a care assistant in hospitals, washing patients, changing their clothes, moving their gurneys about, and so on. In this employment he was paid around £6 per hour. Between the years 2008 and 2012 he earned a gross annual income of between £10,000 and £15,000. [ 36 ] The plaintiff has some childhood memories of his father.

He remembered, for example, the 1975 visit during which, he said, the testator took him to a shop and bought him a couple of books and a yo-yo. [ 37 ] He did not see or hear from the testator again until 1982, when he made another impromptu appearance in London and took the

plaintiff out for tea. On this visit the testator introduced the plaintiff to his second wife, Betta. The testator told the plaintiff that he and Betta were going to Darlington and that he would be back in two weeks to see him again. He gave the plaintiff £20. On the return visit the testator took the plaintiff into London for the day. The plaintiff said that they had a pleasant time together, and that it was good to see his father.

The testator gave him another £20 before dropping him at home. [ 38 ] The plaintiff confirmed his mother’s evidence that, the following year, when he was 15 years old, he travelled to Canada to stay with his father. He landed in Edmonton where he stayed with the defendant, Barbara LeBlanc, and her husband, Bill LeBlanc, for three to four days. The testator took him to Vancouver through Calgary. They went fishing in Vancouver then drove up to Fort Nelson. [ 39 ] The plaintiff said that the testator owned a large piece of land which he had cleared of tress and planned to farm or homestead.

During his time in Fort Nelson the plaintiff worked with the testator on this property. The plaintiff said that the testator, his friends, and Betta were good to him. He enjoyed himself. He got on well with his father and liked him. The visit lasted about a month. [ 40 ] The plaintiff testified that after this visit he hoped to see the testator more often. He wanted to have a proper, consistent relationship with him.

He said that the testator may have telephoned him a couple of times after he returned to England, but, to the plaintiff’s disappointment, between 1983 and 1988 the plaintiff only spoke to the testator a few times on the telephone. The plaintiff initiated most of the calls. [ 41 ] In 1988, at the age of 20, the plaintiff was in the Territorial Army in Northern Ireland. He phoned the testator to ask if he could visit him in Canada. The testator did not seem keen on the idea and said that he would have to speak to his wife.

The plaintiff thought the testator was abrupt and clearly not receptive to the plaintiff’s overtures. Nothing came of the suggestion. The plaintiff testified that he found this upsetting especially as they had got along well during the visit in 1983. [ 42 ] Sometime in 1990, the plaintiff telephoned the testator at the number he had for him in Fort Nelson. A woman answered the phone. She told the plaintiff that the testator “didn’t live here anymore” and hung up. This came as a surprise to the plaintiff, as he had received no notice that the deceased had moved.

From this point he had no means of getting in touch with the testator, as he had left no forwarding address or new contact details. [ 43 ] Meanwhile the plaintiff was still in the Territorial Army. He was stationed at Fort Lewis in Washington State in January and February of 1995. He had asked for this posting because it was next door to B.C. and he thought he might be able to arrange a visit with the testator. [ 44 ] After he arrived in Washington, the plaintiff telephoned directory assistance in B.C. and had the operator go through the listings under the name McMain.

He was told that there was an Elizabeth McMain on Vancouver Island. He phoned this number and, lo and behold, Betta picked up. [ 45 ] The plaintiff and testator arranged to meet for a visit at a hotel in Vancouver, but the testator did not show up, calling the hotel after the appointed hour and explaining that he had slept late. He said he would not be able to make it in time, and added that the cost of the trip, which he said was around $200, was too high for a brief visit. [ 46 ] The plaintiff found this dispiriting. He was not put out that the testator had slept in. He thought this was “fair enough”.

What got him down was the firm impression that the testator did not consider visiting with him to be worth the expense. At this point he had not seen the testator in 12 years. [ 47 ] After this, the plaintiff felt that the testator had made the message pretty clear: he was not interested in the plaintiff and did not wish to have contact with him. Communication was sporadic from then on. The plaintiff telephoned the testator on the birth of the plaintiff’s first child, a daughter, in 1996. The testator sent this child a locket and some photographs.

After that the plaintiff telephoned the testator approximately once a year. [ 48 ] On Boxing Day 2003, the testator phoned the plaintiff’s house, asking for his cousin, Leslie. He had obviously dialed the wrong number. The plaintiff and testator had a brief and pleasant enough conversation, but it depressed the plaintiff to think that his own father would only call him by mistake. [ 49 ] After this, the plaintiff testified that he “became weary with the whole thing” as it seemed obvious that the testator did not care for him and did not wish to have anything to do with him.

He would have been happy to have had more contact with the testator, and in particular would have liked it if his children had met their grandfather. [ 50 ] The plaintiff discovered only by means of internet inquiries that Betta had died in 2004. He found out by the same means that the deceased himself had passed away in 2011. He received no notice of his father’s death from any of his family in Canada or Darlington.

He testified that he would have attended his father’s funeral if he had been notified of it. [ 51 ] The first official word that he received concerning his father’s death was a letter from a B.C. solicitor enclosing the will. He read para. 5, previously referred to, indicating that no provision had been made for him. He found it quite upsetting. To his way of thinking, it was his father’s last repudiation of him. He did not understand why the testator had treated him this way, in both life and death. They had never had a cross word. They had always got along.

The plaintiff found the whole business bewildering and hurtful. [ 52 ] But there is, of course, another side to this story. William LeBlanc [ 53 ] William LeBlanc, the defendant’s husband, testified about the relationship he and his wife had with the testator over the years. He first met the testator in the summer of 1972 in Montreal, shortly after the testator arrived in Canada. It was in Montreal, in fact, that the testator met Betta.

[ 54 ] Mr. LeBlanc testified that, in around 1974, the testator and Betta moved to Elkford, British Columbia, and were married there in April 1975. Mr. Leblanc and the defendant moved to Edmonton, Alberta. [ 55 ] During their early days in Edmonton, Mr. LeBlanc and the defendant visited the testator and Betta in Elkford. The testator visited them in Edmonton as well. The testator and Betta moved to Fort Nelson, British Columbia in 1981, after which contact was less frequent. [ 56 ] In the early 2000s Mr. LeBlanc and the defendant started thinking more about their extended family.

In 2001 they became aware, for example, that the testator had had a heart attack. After this the defendant and the testator became closer. By this time the testator had moved to Comox, B.C. [ 57 ] In 2004 Betta McMain died suddenly. The testator was shocked and laid low by this. Mr. Leblanc testified that Barbara flew out the day after Betta’s death to comfort the testator. After this, he said, the bond between the testator and the defendant became stronger. The testator came to rely on the defendant. [ 58 ] In 2008 Mr. Leblanc and the defendant moved to Qualicum Beach.

He was semi-retired and the defendant was on the verge of full retirement from her career as a medical laboratory technician. The defendant had come to like Vancouver Island on previous visits with the testator, and this was her choice of a place to live. They stayed with the testator for a couple of weeks in August 2008 while they looked for a place to buy. [ 59 ] Once settled in Qualicum, the defendant saw the testator more often. With the proximity of their respective residences, they were able to have lunch or dinner together at Courtenay whenever they wished.

The testator also visited them for family meals and special occasions. [ 60 ] Mr. Leblanc testified that the testator had a close bond with the defendant: he “really relied on her”; they spoke four times per week; she visited him weekly or bi-weekly in Courtenay; she would even drive up to Courtenay to walk the testator’s dog. [ 61 ] The testator’s last days were difficult. He was hospitalized. Mr. Leblanc and the defendant looked after the testator’s dog, who, sadly, died unexpectedly while in their care. Barbara Leblanc [ 62 ] The defendant Barbara Leblanc is the daughter of Joyce, the testator’s older sister.

The defendant testified that her first memory of the testator was from approximately the year 1962. She remembered when he moved to Canada in 1972, at which time she and her parents were living in Montreal. The testator stayed with them for a time after his arrival. She remembered that he married Betta in Montreal in 1974, and that the couple moved to Elkford, British Columbia, shortly thereafter. [ 63 ] The defendant and her husband, Bill Leblanc, moved to Edmonton in 1975. Over the next five years or so they visited occasionally with the testator and his wife, Betta, either in Elkford or in Edmonton.

There was also regular telephone contact. [ 64 ] The defendant testified that in 1981 the testator and his wife moved to Fort Nelson, British Columbia, where the defendant visited the testator occasionally over the years, sometimes with her mother, who travelled to Canada from time to time. [ 65 ] The defendant recalled the plaintiff’s 1983 visit to Canada. She remembered visiting Fort Edmonton with the plaintiff and the testator, and driving the plaintiff to the airport for his return trip to England. She said that there never appeared to be any unhappiness or contention between the testator and the plaintiff.

They seemed to get along well. [ 66 ] During the 1990s the defendant saw the testator less often than previously. She and Bill were busy with their careers and their own families, but she remained in touch with the testator by means of telephone calls, greeting cards, letters, and the like. She said that the testator and Betta left Fort Nelson in early 1993 and moved to Vancouver Island. [ 67 ] In 2001 the testator had a heart attack. The defendant was concerned about this and stayed in regular contact with the testator and Betta.

The defendant became the unofficial conduit through whom information concerning the testator’s well-being was transmitted to the McMain relatives in the U.K. The testator had other health problems in the early 2000s including a lung infection and emphysema. [ 68 ] In 2004, the testator’s wife Betta suddenly died. The defendant flew out the very next day and over the following week or so rendered valuable assistance to the testator during this difficult period.

She helped him arrange Betta’s funeral, cleaned his home, took care of his dog, and generally supplied the testator with much needed and appreciated comfort and support. [ 69 ] Between 2004, when Betta died, and 2008, the defendant talked to the testator on the telephone approximately three times per week. She was worried about him, as he was in poor health and grieving his wife.

She visited him in Courtenay on three occasions in 2005, twice in 2006, and twice in 2007. [ 70 ] The defendant confirmed that she and her husband moved to Qualicum Beach in 2008, and that, in August of that year, they stayed with the testator for a couple of weeks. The defendant described this visit with the testator as being a happy one. She got the distinct impression that the testator was hoping she would settle closer to him than Qualicum Beach. [ 71 ] The defendant testified that the testator did not talk to her about his will before he executed it, but gave her a copy sometime in 2006.

Both she and Bill were surprised by its contents, but pleased that the testator would consider conferring such a substantial gift upon her. [ 72 ] After moving to the Island, the defendant saw more of the testator than ever before. She visited with him in Courtenay every two weeks and between times talked to him on the phone. The testator’s health was continuing to decline, and the defendant helped him with shopping, looking after his dog, banking, cooking, washing up, cleaning the house, and so on.

[ 73 ] The defendant was with the testator during his last days. She looked after his dog, which, as previously mentioned, died while in her care. She had to break this news to the testator in hospital, which, understandably, was difficult. She took great care to make sure that the testator was as comfortable as possible in hospital, but his decline was rapid and he passed away within the week.

After his death, she made all the funeral arrangements, secured the testator’s house, and later, performed all the tasks required as administrator of his estate. [ 74 ] The defendant described the testator as a retiring, kind and contemplative man. He was well-educated and informed, loved to chat, and was a most convivial companion. During her testimony she referred, with obvious natural fondness, to many pictures of the testator and various other members of her family.

She also referred to many telephone records confirming her regular contact with the testator over the years. [ 75 ] The defendant testified that her many services to the testator were motivated by natural love and affection. She had no expectation that the testator would leave her anything at all, much less everything he owned. She was not aware until after the testator’s death that she was the designated beneficiary of the RRIF.

She said that, while she was obviously happy to receive such a benefit, it also made her sad to think the testator had saved this money instead of spending it on himself and living better. [ 76 ] The defendant testified that the plaintiff was more or less a stranger to her. She had never met him before his 1983 visit to Canada, and she never saw him afterwards until the beginning of this trial. She said that the testator never talked about the plaintiff. She had no idea what kind of a relationship, if any, existed between the plaintiff and the testator. She was unaware of any dispute or grievance between them.

Her only insight into why the testator disinherited the plaintiff came from reading paragraph 5 of the will. She knows nothing more than that. She and the testator never discussed the plaintiff’s disinheritance. [ 77 ] Interestingly, the defendant testified that the testator travelled to England in 1989 to attend the funeral of his old sister, Elizabeth. It is clear on the evidence that the testator made no attempt to contact the plaintiff during this visit, even though he had been in reasonably recent contact with him. Discussion [ 78 ] There are no important factual disputes in this case.

The four witnesses called to testify on this trial struck me as decent and honest people. The evidence of the plaintiff and his mother concerning the plaintiff’s relationship with the testator is uncontradicted and I accept it without hesitation. On the basis of what I heard from them, it is clear that if the testator had wanted to enjoy access to the plaintiff, no impediments would have been put in his path. [ 79 ] Similarly, I have no hesitation in accepting the testimony of the defendant and her husband.

In particular, I accept their characterization of the testator as a warm-hearted family man and beloved family member. [ 80 ] As I mentioned yesterday in my exchanges with counsel, I also accept without question that the defendant was a loving, caring and loyal niece to the testator. She kept in touch with him and cared for him over many years and was motivated throughout by nothing other than natural love and affection. We should all be so lucky. [ 81 ] It is perfectly understandable that the testator should have shown the defendant his gratitude by granting her a substantial bequest from his estate.

Such a gesture was entirely fitting and no one would question it. [ 82 ] 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. [ 88 ] In my view, in all the circumstance of this case, the plaintiff has a strong moral claim to a share of the testator’s estate. This

claim is undiminished by the plaintiff’s decision, after the failed 1995 Vancouver reunion, to abandon his attempts to get closer to his father. The plaintiff had come to the conclusion that his father did not love him and wanted nothing to do with him. I do not blame him. The testator did almost nothing to lead him to think otherwise. It was the only rational conclusion for him to have drawn from a lifetime of experience. [ 89 ] 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 this. [ 91 ] In my estimation, as in Gray , this case involves the testator’s unilateral withdrawal from the parent child relationship.

I appreciate that there was occasional contact between the plaintiff and testator, but my overall finding is that the plaintiff wanted a relationship, and the testator, for whatever reason, could not be bothered. [ 92 ] In my judgment, the testator cannot resort to his indifference to his parental responsibilities in life as a justification for avoiding his moral obligations to his only son in death. [ 93 ] Yet this is precisely what the testator attempted to do in para. 5 of the will. In my view the statement made in this paragraph gives neither valid nor rational grounds for disinheriting the plaintiff.

The words set out in para. 5 are superficially true, but they portray only a fraction of the whole truth. [ 94 ]

Section 5 of the Act enjoins me, in evaluating the weight to be given to para. 5 of the will, to have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of what was said. I am not limited to the testator’s cryptic and incomplete narrative of his relationship with his son.

I must look at the whole picture. [ 95 ] Having done so, I am strongly persuaded that this is a case in which the testator more or less abandoned his son from an early age and had a strong moral obligation to attempt to make up for his omissions in his will. [ 96 ] Accordingly, the will be varied to make adequate, just and equitable provision for the plaintiff, while interfering as little as possible with the testator’s clearly expressed autonomy and intentions.

In my view, the plaintiff’s position that the entire net estate should be transferred to him is over-reaching, would entirely obviate testamentary autonomy, and is not a fit remedy to the circumstances. [ 97 ] While the RRIF transferred to the defendant outside of the will does not form part of the estate, nevertheless I can consider the amount of the RRIF in determining the extent of the appropriate variation: Inch v. Battie , 2007 BCSC 1249 , citing DeLeeuw v. DeLeeuw , 2003 BCSC 1472 , Ryan v.

Delahaye Estate , 2003 BCSC 1081 . [ 98 ] As the residue of the estate has been reduced to cash and is on deposit in a solicitor’s trust account, counsel have encouraged me to express my judgment in monetary terms rather than as a percentage of the estate. [ 99 ] At counsel’s urging, therefore, I hereby award the plaintiff the sum of $180,000 to be paid from the testator’s estate. [ 100 ] That is my judgment. “R.A.M. Baird, J.” The Honourable Mr. Justice R.A.M. Baird