2006 BCSC 1545 Prakash and Singh v. Singh et al

Before: The Honourable Mr. Justice Rice

Reasons for Judgment

Counsel for the Plaintiffs:	Norman D. Mullins, Q.C.
Counsel for the Defendants Pradip Kumar Singh, Pravindra K. Singh and Sadhna Singh	Donald D. McLellan
Date and Place of Trial:	September 26, 27, 28 and October 6, 2006
	Vancouver, B.C.

INTRODUCTION

[1] This is an action to vary the Will of the late Saraswati Singh, deceased, who died December 21, 2004 in Vancouver, B.C. She left a net estate of about $550,000.

[2] Mrs. Singh executed her last Will on July 16, 1999. In it she gave $10,000 each to her three daughters, and the residue equally to her two sons ($260,000 each).

[3] The plaintiffs, Anjila Prakash and Pramila Singh, are Mrs. Singh’s two eldest daughters. Their claim is under the Wills Variation Act, R.S.B.C. 1996, c. 490 (the “WVA”). They argue that the Will does not make adequate provision for the daughters according to what is adequate, just and equitable in the circumstances, and should be varied to provide each child with an equal or near equal share of their mother’s estate.

[4] The third daughter, the defendant Roshni Kumar Singh, accepted $10,000 and chose not to sue for more.

[5] The defendants, Pradip Kumar Singh and Pravindra Kumar Singh, whom Mrs. Singh also appointed as executors, are her two sons. They argue that their mother’s wishes were clear and should be respected, and that there is no basis for altering the Will.

[6] Sadhna Singh, the wife of Pradip Kumar Singh, is also named as a defendant. She is registered as joint owner of the deceased’s home which the plaintiffs say belongs to the estate. The Royal Bank was also joined as a defendant, but the action against it has been dismissed by consent.

[7] The sons, as executors, filed for probate on January 28, 2005, declaring at that time a gross value for the estate of $489,742.26, with debts and liabilities of $8,493.81.

[8] The assets of the estate include the home of the deceased which the sons as executors valued then at $368,300, plus four bank balances totalling $121,442.26. Later, the Land Title Office declared the value of the home to be $437,000 which suggested a date of death net value for the whole estate in the range of $550,000. The fair market value of the home has since risen to $650,000, thus raising the value of the whole estate to about $763,000.

[9] Thus, in percentage terms, the daughters’ shares each amount to about 1.3% of the estate and the sons’ shares are about 48% ($366,240) each.

BACKGROUND

[10] Mrs. Singh and her late husband, Chandar Pal Singh, who died in 1994, immigrated to Canada with their five children in 1974. Mr. Singh had cash of about $10,000, and he was the owner of a theatre in Fiji which yielded some rent. He went to work immediately as a security guard. Mrs. Singh and the two eldest daughters, the plaintiffs, also obtained jobs. The three younger children worked part time while they finished school, and then took on full time jobs.

[11] The family initially lived in a rental basement suite in Burnaby, and then moved to another suite in Vancouver. In 1976, Mr. and Mrs. Singh purchased their first house at 16th and Renfrew. They then sold it in 1978 and purchased another house at 3124 East 21st Avenue, Vancouver, B.C. (the “East 21st home”). It was their home for the rest of their lives.

[12] All five of the children have since married and have children of their own. All are employed and are reasonably well-off financially.

[13] In terms of mutual love and affection, and non-financial contributions to the parents, there is little to distinguish any of the sons and daughters. It is fair to say that all five of the sons and daughters were devoted to their parents, giving of their time generously to help their parents. In return, the parents loved and cherished their sons and daughters equally.

[14] The sons allegedly made financial contributions which justify their being favoured in the Will, but that is in issue. In any event, it is common ground that the main reason for the disparity in the gifts was Mrs. Singh’s belief in her native Indo-Fijian tradition that the sons should inherit all of their parents’ estate to the exclusion of the daughters except for token amounts.

FACTS

(a) The Family Home

[15] The name of the son Pradip Kumar Singh was included on title at first as a one-third joint owner of the East 21st home, and he signed a mortgage accordingly. Pravindra Kumar Singh’s name would have also been included, but wasn’t because, as the sons said, he was going to get married and the family didn’t want to expose its assets to claims of the new wife if things didn’t work out in the marriage.

[16] In 1983, Pradip transferred his registered one-third interest to his mother. He said it was for the same reason. He had gotten married and the family wanted to protect the home from his wife’s claims in the event that the marriage deteriorated.

[17] This all suggests an intention to include the sons as owners, and the sons both testified that they believed they had some stake in the home as members of the family. What they believed this to mean was uncertain. Neither pled to having any interest in the home. They both contradicted themselves somewhat, testifying also that they did not acquire any interest in it. It seems that most likely their sense of entitlement derived from the expectation that it would come to them eventually when their parents died.

(b) The Sons’ Financial Contributions

[18] The sons allege that from the time the 16th and Renfrew property was purchased, they contributed to the mortgage payments on the family homes. This was at first by way of turning over their paycheques to their parents, and later by paying $200 each per month up until the mortgage was finally paid off in about 1996. The sons testified that each of them also paid $2,500 toward the $20,000 deposit on the purchase of the East 21st home.

[19] There was not a single item of documentary evidence to support those alleged payments which the sons said were all in cash with no receipts. The plaintiffs testified that they never heard of such payments, and doubted that they were made. However, the sons’ wives both testified that they knew of their husbands making regular payments and Roshni Kumar Singh testified that she knew of the arrangement and had seen the brothers handing over cash to their parents.

[20] I find it more probable than not that the brothers did make payments along the way to help their parents financially. I am persuaded by the supporting testimony. Mr. McLellan, counsel for the sons, calculated total payments by the sons at $96,400. I accept that probably they made most of the payments they say they did. I can’t help but doubt that they made every payment in view of lack of written evidence. I doubt that the plaintiffs were wholly unaware of the payments.

[21] What is not clear at all is whether there were terms of payment discussed. The evidence does not disclose to my satisfaction that there were any such discussions. The sons testified that their intention behind these payments was to help the parents, not themselves. Pravindra said that the payments were gifts.

[22] Mr. McLellan also argued that whether or not the sons made every payment alleged, or became entitled to anything in return, their cash contributions made it possible for their parents to own a home as early as they did, and to hold onto it. I accept that and I agree that it is a factor to consider.

(c) Free Rent

[23] All of the children lived with their parents rent free for some time. The plaintiffs left home in 1975 when they were both married. Both the sons continued to live at home for several years afterwards, before and after they were married. In 1981, Pradip married Sadhna Singh and they both lived with his parents until 1983. Pravindra married Helen Singh in 1980 and they continued to live with his parents until 1993. The other daughter, Roshni, was married in 1986 and left in 1989.

[24] One could say that the savings on rent were considerable for the children. It was argued that this is a strong factor to consider and weigh against the sons’ financial contributions. I wouldn’t agree entirely. Living with adult children and their families was traditional in the Singh’s culture. There was no testimony suggesting that the parents regarded those living arrangements as any kind of burden or sacrifice. The testimony indicated that they enjoyed having the company, sharing of expenses and work, and having carte blanche access to their grandchildren.

[25] In October 2001, Mrs. Singh accepted the invitation of Pradip to go and live with him and his family in Maple Ridge. In 2004, however, and mainly it is said, because of Mrs. Singh’s need to be closer to her medical services, she moved back to the East 21st home. Pradip and his family moved in with her. They remained there until her death in December 2004, and they continue to occupy the home at this time.

(d) Improvements by Pradip

[26] Sadhna Singh and Pradip Singh claim to have expended in excess of $100,000 in cash and labour in and around 2004, to accommodate the needs of the deceased and the property located at 3124 East 21st Avenue”. While there is no doubt that some significant renovations were made in 2004, documentation to support expenditures anywhere near $100,000 was lacking and it was not substantiated that Mrs. Singh requested those improvements, except for a few, which she paid for.

[27] The plaintiffs challenge the necessity for almost all of those improvements and say that Pradip decided on them more or less unilaterally for the pleasure of his own family more than for Mrs. Singh. Pradip himself admitted that he simply told his mother what improvements he was going to have done. There was no evidence of any subsequent request of her to pay for any of the improvements. There is a logical reason for this. Neither Mrs. Singh nor Pradip and his family expected her to die in 2004. They expected her to remain alive and allow them to live with her rent free indefinitely in the home.

[28] There was no appraisal evidence as to any increase, if any, of the home’s value due to the improvements. The evidence, however, satisfied me that the improvements were substantial, and that they contributed to Mrs. Singh’s convenience and comfort.

(e) Financial Positions of the Children

[29] Counsel for both parties agreed that need is not a factor in this case. The parties each testified regarding their income and net worth. Not much was adduced to corroborate the testimony, or to challenge it. The sons’ wealth appeared to be somewhat less than the plaintiffs’, but neither of the sons claimed to be under any strain, and overall their financial prospects are good. Being younger, they have the advantage of more work years ahead.

[30] Anjila, about age 50, lives with her husband of 30 years, although they have separated twice. They have two children aged 28 and 21. They live in a home of their own in Surrey. Anjila was not working when her mother died. She is now a customer service representative earning $25,000 per year. Her husband is a Canada Post letter carrier earning $30,000 per year. They estimate the equity in their home to be about $250,000. Anjila owns an RRSP of $44,000. They are indebted, apart from their mortgage, on a separate $20,000 loan.

[31] Pramila, age about 53, is a hotel room attendant earning $26,000 per year. She has also been married for 30 years and has four children between the ages of 20 and 29. Her husband works for Premium Brands for $30,000 per year, and they too own their own house in Surrey with an equity of about $220,000. She confirmed that in 1996, her husband asked Mrs. Singh to help him get started in a new business. Mrs. Singh gave him $3,000, and according to him, she refused to take any repayment. She said it was a gift.

[32] Pradip, age 46, is a Canada Post letter carrier earning about $40,000 per year and his wife works as a customer service manager for $25,000 per year. In 2004, they sold their Maple Ridge home for net sale proceeds of over $200,000, and chose to stay in the East 21st home rather than buy another home of their own. Pradip and Pravindra caused title to the home to be transferred to Pradip and his wife, Sadhna, after obtaining probate of the Will.

[33] Pravindra, age 47, likewise, is in a favourable financial position. A service representative for Budget Rent-A-Car for more than 20 years, his work situation is secure. He has been divorced from his wife since 2001. Their three children, ages between about 18 and 25, live with her. They sold their home and each took $60,000 cash. He used his share to purchase a new place of his own. Further information as to his net worth when his mother died was not in evidence.

(f) Non-Financial Contributions

[34] Both parents needed personal assistance as they grew older. Chandar Pal Singh, the father, suffered from diabetes, and in 1985 he went on disability and was never able to return to work. In about 1989, his diabetes became more serious and in 1990 he had to go on dialysis and later undergo the amputation of one of his legs. A dialysis was performed three times a week at Vancouver General Hospital. After he died, Mrs. Singh also began to suffer from diabetes and she too had to go on dialysis; however, it was a process that she could manage at home by herself at first, and later with help from the family.

[35] Anjila said that she went to visit her parents regularly, particularly on weekends, and that she accompanied her mother to church. About the time of her father’s death in 1994, Anjila became separated from her husband and came to live with her mother for about a year. When her mother contracted diabetes, Anjila said that she helped her mother with her dialysis. Pramila testified that she regularly visited her mother and father about twice a week. There was some challenge to that. The wives of the sons said that they did more for the parents, particularly when they lived in the parents’ house.

[36] Anjila testified that when she was living with her mother in 1995, Pradip ordered her to immediately leave one day, or he’d throw her belongings onto the street. He did not deny it. He said his mother asked him to get Anjila out because Anjila was harassing her. It wasn’t clear what the alleged harassment was about, but Pradip said it was over Anjila’s insistence that her mother buy life insurance. Anjila denied it emphatically. Anjila said she bowed to the threat and left. She admitted that she had complained to her mother about her Will, but denied that there was any harassment or that her mother ever indicated any such feeling. I find it improbable that Anjila’s expressed feelings to her mother hurt her relationship with her mother. It is not consistent with the other evidence.

[37] From 2001 to 2004, when Mrs. Singh lived with Pradip in Maple Ridge, Pradip said that the plaintiffs only came out to see her twice. He was contradicted by the plaintiffs and by the youngest daughter, Roshni, who said that she would go every week to visit their mother in Maple Ridge, that she would phone Anjila and Pramila and invite them to come with her, and that one or both of them came all the time. I accept her testimony on that point, and otherwise, I accept the plaintiffs’ testimony. It is farfetched to suggest that any of the sons or daughters would not visit their mother at all for three years, except twice.

[38] The sons testified that the parents gave the rents from the East 21st home to the daughters. No other evidence was adduced to support that allegation and it was denied by the plaintiffs. I accept their denial insofar as any regular, exclusive practice of this kind was concerned. It would not surprise me that the parents would give away money as presents from time to time. It is not a major factor, however.

[39] It is fair to say that when they lived with the parents, the two sons and their spouses put in more time and gave more assistance quantitatively than the two plaintiffs. I would not, however, say there was much to distinguish any of them afterwards. Throughout, I find that the plaintiffs were diligent in visiting and helping their mother, and that the mother felt equal affection for all her children.

(g) Cultural Tradition

[40] The Singh family has its roots in the Indo-Fijian culture, a culture of long standing and honoured family traditions. Several witnesses testified, and the parties agreed, that one of those traditions is that sons and not daughters should inherit the bulk of their parents’ estates.

[41] No evidence was adduced to show how strictly this tradition is observed generally, but it was common ground that Mrs. Singh viewed the tradition as binding upon her testamentary choices, or at least highly influential. It seems that the children knew of the Will and were aware of their mother’s plans. Anjila had complained to no avail. Mrs. Singh once told Anjila to be content. She (the mother) had only received $500 from her parents when they died.

(h) Release

[42] Pramila Singh signed a release document on or about April 1, 2005. According to Pramila, after a phone call from her sister Roshni that day, she drove to her mother’s home where Pradip was waiting and told her that she could have her cheque for $10,000 if she signed for it at the bank. Pravindra was present as well. They all went to the bank and met with a bank official who had a cheque ready for $10,000 payable to Pramila. He first, however, gave her a form of release and told her to read it and then sign it.

[43] Pramila admits that she did read the release and that she signed it, but she maintains that she did not understand that it was in respect of anything other than the $10,000 that she was receiving. No one advised her at that time as to its meaning. No one read the document to her, or told her that she should consult a lawyer.

[44] Pramila testified that she asked Pradip where the rest of the money was going and that he became angry and asked her why she wanted to know. Pradip denied that he became angry. I accept Pramila’s account. Upon signing the release, she was given the draft for $10,000, which she cashed.

[45] The distribution to Pramila of $10,000, for which the release was signed, was illegal under s. 12(1) of the WVA. It was paid before the lapse of six months after probate, without the consent of all persons who would be entitled to apply under the WVA. I find that the release is, therefore, void.

[46] Alternatively, the release is void for want of consideration. There was no legal obligation for Pramila to sign the release. She was entitled to her money. While it is said that the executors required it as a condition of paying the money earlier than six months from probate, that is untenable because it was an illegal offer, and not, therefore, valid consideration.

[47] Mr. Mullen did not argue breach of trust or good faith by the sons as executors. The circumstances may or may not have supported such a claim. The sons drove Pramila to the bank telling her she would have to sign the release for the money. Neither son said anything about a full and final release. Pravindra and a bank official stood or sat with her when she signed the document. She asked Pradip about the rest of the money, and he reacted angrily. Arguably, the basis for a duty to inform Pramila about her rights under the WVA arose, but more facts would need to be known.

WILLS VARIATION – THE LAW

[48] If a will does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s children, the court may, under s. 2 of the WVA, order some other provision for the children that the court thinks adequate, just and equitable in the circumstances. The task of the court is to decide whether at the date of the testator’s death, his or her will was consistent with the discharge by a good parent of parental duties to the family: Kelly v. Baker (1996), 82 B.C.A.C. 150 at para. 58.

[49] The leading case on what is “adequate, just and equitable in the circumstances” is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, 3 E.T.R. (2d) 229. In it, McLachlin J., as she then was, explained that the determination of what is adequate, just and equitable must take account of both legal and moral obligations of the testator as of the date immediately before the testator’s death. Of the two, legal obligations must be considered first: Bridger v. Bridger Estate (2006), 53 B.C.L.R. (4th) 235, 2006 BCCA 230 at para. 19.

MORAL CLAIMS

[50] In Tataryn, McLachlin J. described moral claims at para. 28 as:

[F]ound in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.

[51] Insofar as assessing competing moral claims, McLachlin J. said as follows at paras. 32-33:

It falls to the court to weigh the strength of each claim and assign to each its proper priority. In doing this, one should take into account the important changes consequent upon the death of the testator. There is no longer any need to provide for the deceased and reasonable expectations following upon death may not be the same as in the event of a separation during lifetime. A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes. Any moral duty should be assessed in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children.

I add this. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable … Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly, but only insofar as the statute requires.

[52] There are several cases related to moral obligations, including Bridger v. Bridger Estate, supra, Dring v. Ziefflie (2004), 10 E.T.R. (3d) 121, 2004 BCSC 1071, and Sawchuk v. MacKenzie Estate (2000), 31 E.T.R. (2d) 119, 2000 BCCA 10.

[53] In Ziefflie, at para. 25, Dillon J. reiterated the principles enunciated in Tataryn, and followed the reasoning of Smith J. in Ryan v. Delahaye Estate, 2003 BCSC 1081, 2 E.T.R. (3d) 107 at paras. 67-68:

The adequacy of a moral claim is not easy to assess, especially where a child has not been disentitled, but has received something less than her sibling. In the absence of express reasons for an unequal distribution, contemporary standards create a reasonable expectation of children sharing equally in a parent's estate. However, no legal obligation exists to do so. The court must be cautious that it does not use the legislation to rewrite the will and thereby disregard the testatrix's motives or reasons in distributing her estate in the manner she has chosen.

Express reasons for the distribution of an estate form the basis for determining if the distribution of a testatrix's estate is adequate, just and equitable. The law requires an examination of the accuracy of the express reasons in order to determine if they are accurate and therefore valid and rational in the circumstances that existed at the time of the testatrix's death.

[54] The learned judge in that case found that the distribution provided in the Will was not adequate, just and equitable. In balancing the reasonable expectation of equality between the children and the caveat against rewriting the Will against the testator’s intentions, she awarded the plaintiff a greater but not equal share of the estate.

ANALYSIS

[55] There is no issue of need as far as any of the children are concerned.

[56] There were no outstanding legal obligations owed by Mrs. Singh to any of her children at the time of her death. With respect to the sons’ financial contributions, the evidence does not support the making of any agreement. They were gifts. Similarly, with respect to Pradip’s improvements to the house, there was no agreement for Mrs. Singh to pay for the renovations, nor any request by her for any of the renovations, except for those items that she paid for. With respect to enrichment, despite the lack of any expert evidence of increased value to the home from the renovations, I find that there was some benefit. However, there was a juristic reason for Mrs. Singh to receive and not to pay for those benefits. It was her consent to Pradip and his family living in her home for the foreseeable future.

[57] In terms of moral obligations, Mrs. Singh chose an option that fell short, that is, according to the moral norms of our Canadian society. A variation is needed.

[58] In modern Canada, where the rights of the individual and equality are protected by law, the norm is for daughters to have the same expectations as sons when it comes to sharing in their parents’ estates. That the daughters in this case would have this expectation should not come as a surprise. They have lived most of their lives, and their children have lived all of their lives, in Canada.

[59] A tradition of leaving the lion’s share to the sons may work agreeably in other societies with other value systems that legitimize it, but in our society, such a disparity has no legitimate context. It is bound to be unfair, and it runs afoul of the statute in this province.

[60] Section 2 of the WVA calls upon the court to determine what is adequate, just and equitable, and in that, it confers no preference upon males. In Chan v. Lee Estate (2002), 47 E.T.R. (2d) 163, 2002 BCSC 678 at para. 39, Hood J. commented:

In any event, I have concluded that the father’s intentions were clear when he gave the company to his sons and when he gave his daughters the monies. Rightly or wrongly, that is what he intended. And whether or not in doing so, he was following a Chinese tradition is irrelevant. It is not the way of this country, and s. 2 of the Wills Variation Act makes that clear.

[61] How much more the daughters should receive is another question. The court will always wish to be most cautious not to rewrite the Will, and most reluctant to disregard the testator’s legitimate motives, especially where, as in this case, the claimants are independent adult children.

[62] There was a rational and reasonable basis to favour the sons moderately regardless of Mrs. Singh’s tradition. The sons helped with the mortgage on the home early on when their help was most needed, and they kept on paying. True, the daughters weren’t asked, but it was not established that not asking them was purely traditional, or whether they would have helped if asked. The daughters never offered to make any payments to help out the parents. The fact also that Mrs. Singh lived with the sons and their families for so many more years may have moved her to feel a moral obligation to give them more. Pradip taking his mother in to live with his family and providing the home improvements could have made the mother wish to favour him. These circumstances by no means rise to the level of Mrs. Singh’s predominant reason for her choices, her tradition, but they are compelling enough to recognize a measure of legitimacy in the Will.

[63] Whether or not Mrs. Singh actually deliberated at all on the individual contributions is unknown, and the amount of variance needed to cure the inadequacy of the Will, and yet protect the testator’s legitimate motives, is impossible to determine with precision. It requires a thoughtful consideration and balancing of what were the likely motives.

[64] Whether more was due to one son than the other was not pled, and in my view, treating them as equally entitled was well within the discretion that ought to be the testator’s.

[65] In weighing the evidence, I have concluded that the Will needs a substantial increase in the gifts to the plaintiffs to eliminate the effect of the discrimination, but not to the level of an equal distribution.

CONCLUSION

[66] In my view, the adequate, just and equitable result, which I hereby order is as follows.

[67] There will be no variation for the daughter, Roshni Kumar Singh, who has waived her claim to any more than $10,000. She has received that sum.

[68] Out of the balance, I award one-fifth to each plaintiff.

[69] I award the residue equally between Pradip Kumar Singh and Pravindra Kumar Singh.

[70] The executors will determine forthwith whether Pradip wishes to keep the house and pay for it at its current appraised value. If he does not complete the purchase within 30 days of this Order or at such later date as the plaintiffs both agree, or this Court shall order, the house will be listed and sold and the proceeds taken in trust by the executors and distributed according to the Will as varied by this Order. The parties may seek further directions if necessary.

[71] I declare that the sale to Pradip and his wife created a trust in favour of the estate and is beneficially owned by the estate. All costs of the transfer of the property to Pradip and his wife are to be borne by them personally and not by the estate.

[72] None of the personal effects of the deceased were listed in the inventory of assets. Not much was raised in evidence about their disposition, except for the jewellery, which the executors caused to be divided into three parts and then delivered to the daughters. There is no evidence of any appreciable value in this jewellery or in any of the other items of personalty. The executors will have to justify any value that they seek to attach to those items, and the plaintiffs will have the option of whether to accept the jewellery.

[73] The $10,000 paid to Pramila and the sum of over $42,000 paid to Pravindra will be theirs to keep on account of the total amount to which they are entitled under this Order.

[74] The plaintiffs shall be entitled to interest based on their proportionate share of interest earned on estate funds deposited. There will be no order for interest on funds paid out of the estate early to anyone.

[75] The plaintiffs will have their costs from the sons’ shares of the estate at Scale 3. The executors shall have their costs for administration of the estate, except for all transfers of property and funds prior to six months from probate, and they shall have no costs from the plaintiffs’ share of their participation in this action.

“E. Rice, J.”
The Honourable Mr. Justice E. Rice

Citation:	*Prakash* *and Singh v. Singh et al,*
	2006 BCSC 1545