2006 BCSC 1713 Peden v. Peden, Smith et al

Before: The Honourable Mr. Justice Groves

Reasons for Judgment

Counsel for the Plaintiff:	H.J. Rusk A. Smith, Articled Student
Counsel for the Defendants Gary John Peden, Robert Hamilton Smith and Henning Norgaard, Executors of the Will of Stanley John Peden, Deceased:	F.D. Corbett
Counsel for the Defendant Gary John Peden:	B.R. McConnan, Q.C.
Counsel for the Defendant Craig Charles Peden:	B.J. Kitzke
Date and Place of Trial/Hearing:	September 20-22, 2006
	Victoria, B.C.

Introduction:

[1] In this action, the plaintiff Bruce Douglas Peden seeks orders pursuant to the provisions of the Wills Variation Act, R.S.B.C. 1996, c. 490. The plaintiff first seeks a declaration that the last will and testament of his father (the “Will”), William John Peden (“Peden Sr.”) failed to make adequate provision for him. The Will is dated August 24, 1995. The plaintiff further requests that the Will be varied so that he receive any specific bequest and share of the residue by way of outright gift and not by way of life estate, as set out in the Will.

[2] Peden Sr. died a widower on the 25th of October 2004. He is survived by three sons, the eldest being the defendant Gary John Peden (“Gary Peden”), the second son being the defendant Craig Charles Peden (“Craig Peden”), and the youngest son being the plaintiff. The estate has a value slightly in excess of $1.7 million.

[3] The Will provided that $150,000 was to be paid to Craig Peden, $150,000 was to be paid for the benefit of the plaintiff, and the residue was to be divided into three equal shares. One share of the residue was to be transferred outright to Gary Peden and one share of the residue was to be transferred to Craig Peden. The third share of the residue was to be paid for the benefit of the plaintiff. All payments to the benefit of the plaintiff were as life estates – with the residual beneficiaries of the life estate being Craig Peden and Gary Peden.

[4] The net effect of the Will in actual dollars is that the eldest son, Gary Peden, receives approximately $460,000. The second son, Craig Peden, receives $610,000, and a trust is created for the plaintiff Bruce Peden, the youngest son, in the amount of $610,000, again with the residual legacies to Craig Peden and Gary Peden.

[5] The three Peden children are all adults. Gary Peden is 59 years old, is married, and has two children. He runs a business he purchased from his father Peden Sr., and he lives in Sydney, B.C. Craig Peden is 56 years old, he has two adult children, and has been married on two occasions, although he is currently single. He lives in California where he worked for many years as an appraiser. He is currently on disability. Bruce Peden is 50 years old, he is not employed, and has not been for a long period of time. He lives with and is supported by his partner, Gary Wilson, who he has been in a relationship with for approximately 20 years.

[6] At the end of the trial, I granted the orders sought by the plaintiff, ordering all gifts in the Will to be by way of outright gift. I indicated I would provide written reasons. These are those reasons.

Facts:

[7] The Peden family is a long-time Victoria family. The testator, Peden Sr. was born in Victoria in 1923. He married his wife Ann on the 11th of September 1945. For most of their marriage, they resided in Saanich. Peden Sr. worked for his family business before opening his own building supply business. In the late 1960s or early 1970s, Peden Sr.’s business changed to a recreational vehicle business, operated on the same property where the building supply business had previously operated.

[8] The eldest child, Gary Peden, began working in Peden Sr.’s business once he was out of high school and eventually purchased the business in the late 1970s or early 1980s. The business continued to operate for a period of time on the same premises Gary Peden then rented from Peden Sr. Gary Peden later moved the business to the Sidney area and the commercial lands retained by Peden Sr. were sold. It is funds from the operation of this business, the sale of it, the sale of the commercial lands and the eventual sale of the family residence in Saanich which are the source of the estate in question.

[9] The plaintiff left high school in 1973, a few credits short of completion. He had a number of short term jobs through the 1970s, including working in a bakery, as a janitor, and in the post office as a mail sorter. His longest periods of employment were as a home care worker and a delivery person, both of which jobs he held for approximately a year and a half.

[10] The evidence is clear and uncontradicted that from approximately 1982 on, the plaintiff spent a substantial amount of his time caring for family members. The first family member requiring assistance was his maternal grandmother, Lena Walker. In 1982, Lena Walker was 90 years of age. She had two properties, a rural property on Shawnigan Lake and a home in Victoria. She no longer drove and had a growing inability to manage her homes on her own. From 1982 through 1987, the plaintiff spent a substantial amount of time looking after his grandmother, moving her back and forth between her homes, doing work around her homes, assisting her with shopping, banking and the like.

[11] The plaintiff was able to do so because during the time he had worked, he had saved some funds and he also received an inheritance from his paternal grandfather. It may also be the case that he received a small amount of money from his father during this period of time. He lived off of and depleted his savings during this time.

[12] In 1987, the plaintiff’s responsibilities for family members were made larger. At that time, his mother, Ann Peden, was diagnosed with multiple myeloma, which was explained as a form of blood cancer. Ann Peden was no longer able to assist with the care of her mother Lena Walker and additional responsibility for Lena Walker fell to the plaintiff. Around this time, Lena Walker was having difficulty staying in her own home. She required extra care and extra assistance.

[13] In 1988, the plaintiff himself was diagnosed as HIV positive. He was advised by his doctors to get substantial rest, to be sensible about his activities, and he began a series of HIV drugs as well as a regimen of vitamins.

[14] In addition to concerns of his own health and concerns for his grandmother, the plaintiff testified to being of considerable assistance to his mother during her health problems. He described his father, Peden Sr. as being unsupportive of his mother’s illness, both emotionally and in terms of assisting her with appointments and the like. The responsibilities of this fell to the plaintiff. As an example, Peden Sr. refused to take his wife Ann to her early morning appointment. It interrupted his daily activities, so he would not assist his wife. This responsibility fell to the plaintiff.

[15] By the late 1980s, perhaps with declining health, matters between Peden Sr. and his wife Ann became more difficult. Peden Sr. was described by both the plaintiff and Craig Peden as an abusive alcoholic and Ann Peden clearly could not deal with these circumstances any longer. On a noted occasion, the plaintiff attended at his parents’ home and was physically assaulted by his father. His mother Ann Peden was assaulted as well. The plaintiff removed his mother from the home. He and his partner, Gary Wilson, eventually arranged for the movement of Ann Peden into a retirement facility where she resided for a number of years. From the retirement facility, Ann Peden eventually moved into a hospice. She died in November 1994.

[16] Lena Walker outlived her daughter and by this point had long resided in a care home. The plaintiff continued to assist regularly with her care. Lena Walker died in 1996.

[17] From the late 1980s to 1996, the plaintiff dealt with his own health concerns, as well as caring for his mother and grandmother, both of whom required considerable assistance.

[18] It was sometime shortly after his grandmother’s death in 1996 that the plaintiff began to provide additional care for Peden Sr. Peden Sr. was diagnosed with prostate cancer and required radiation treatment. Substantial assistance appears have been provided by the plaintiff and his partner, Gary Wilson.

[19] As noted, the plaintiff and Gary Wilson had been partners for approximately 20 years. They met in 1987 and formed a relationship shortly thereafter. Gary Wilson gave evidence that it was always understood that in being in a relationship with the plaintiff, he would have to deal with the plaintiff’s responsibilities for his grandmother and his mother and eventually Peden Sr.

[20] The plaintiff and Gary Wilson appeared to have taken on the responsibility for Lena Walker, Ann Peden and eventually Peden Sr. in a very serious manner. Gary Wilson described the responsibility for Ms. Walker and Mrs. Peden, and later Peden Sr., as overwhelming at times. For a time in the 1990s the plaintiff and Gary Wilson combined their financial resources, and neither worked. They spent their resources in a modest fashion to allow them the time necessary to look after the family members. They also relied on social assistance for a time when the funds ran out.

[21] The uncontradicted evidence of the plaintiff’s care provided to his father is significant. When Peden Sr. was diagnosed with prostate cancer, the plaintiff took on his father as a responsibility, ensuring that he attended his doctors and the local hospital for radiation. He ensured that his basic needs were met. He was his companion and caregiver. By 2002, it became apparent that Peden Sr. would have difficulty continuing in the home in Saanich for much longer. Upon his doctor’s advice, Peden Sr. was advised not to drive and not to live alone. The plaintiff took on the responsibility for the day to day care of Peden Sr. at this point, including taking him to all his appointments, assisting him in his home, and visiting daily. He also embarked upon a substantial search through various care facilities in the Victoria area to find an appropriate premises for Peden Sr. Peden Sr. was eventually moved into the Wellesley care home in Victoria.

[22] By the spring of 2003, the plaintiff had arranged and facilitated the move, and maintained contact with his father either daily or every second day. He did his father’s laundry, assisted him with groceries, and until the sale of the Saanich home, took Peden Sr. to the Saanich home regularly for visits. The house was cleaned, assets disposed of, and a private sale arranged by the plaintiff, saving real estate commissions.

[23] Sometime in 2003, after an initial successful period of residence at the Wellesley, it was clear that Peden Sr. was deteriorating. He was taken to the Victoria General Hospital for a 10-day observation period, at which time he was diagnosed with Lewy Body Dementia. This was described in evidence as a dementia with Parkinson type effects, noted for its rapid and increasing declining effect on a person, both physically and mentally.

[24] By late 2003, after this diagnosis, Peden Sr. was back at the Wellesley care home on numerous medications including anti-psychotic medications. The proper administration of medication required the additional assistance of the plaintiff. A much higher level of care was provided by the plaintiff, including regular assistance in bathing and toileting, and cleaning up of “accidents”. Unfortunately, Peden Sr.’s circumstances required more assistance and care than could be provided at the Wellesley and an additional move had to take place. Peden Sr. was taken to the Memorial Pavilion of the Royal Jubilee Hospital for a period of behaviour stabilization. During this period of time, the plaintiff was responsible for moving Peden Sr. out of the Wellesley care home and finding, arranging and moving Peden Sr. to the Beacon Hill Villa in Victoria. Peden Sr. resided there from July 2004 until his death in October of that year.

The Will:

[25] Robert Hamilton Smith was called by the plaintiff to give evidence. Smith was the long time lawyer of Peden Sr. and he drafted the Will. Smith testified to a meeting with the testator prior to the execution of the Will in 1995. The testator advised Smith that he had become aware that his youngest son, the plaintiff, was gay, and that this upset him terribly. He wished that the plaintiff not be a beneficiary of his estate. Smith stated in his evidence that he told Peden Sr. that this was not appropriate, and that Smith would not in fact draft a will to that effect. Words ensued, and Smith testified that Peden Sr. left his office “in a bit of huff”.

[26] Sometime after this meeting, Peden Sr. returned to meet with Smith. He was more calm. Though Smith advised Peden Sr. that the plaintiff’s lifestyle was not cause in law to treat him differently, Smith on instructions drafted the Will in the fashion in which it was done, namely a gift by way of a life estate interest to the plaintiff to reflect what Peden Sr. said was his subsequent concern that the plaintiff’s share of the estate could go to someone other than Pedens. That being said, it is clear from the evidence of Smith that it was the plaintiff’s lifestyle which caused Peden Sr. to dispose of his estate in the fashion he did. As Smith noted in evidence, this caused him concern “to the day he died”.

[27] In regards to the $150,000 outright gift to Craig Peden and the $150,000 gift to Bruce Peden, although again by way of life estate, Peden Sr. explained to Smith that the price that Gary Peden had paid for the family business was less than market value, and he wanted to “level up” the benefit to his other sons. Smith deposed that he had no personal knowledge of that benefit and had no real knowledge of how the calculation was made.

[28] Smith confirmed that by early 2003, Peden Sr. was not able to handle matters on his own. The plaintiff took on greater responsibility, though he was paid a modest sum for this.

Position of Craig Peden:

[29] The only defendant who opposed the plaintiff’s claim was his brother Craig Peden. In his evidence, Craig Peden testified that until October of 2003 or thereabouts, he enjoyed a comfortable life in California. Craig Peden was educated in British Columbia and worked here for a period of time in Victoria, Burnaby and throughout the province. He and his first wife, Peggy, whom he met in the early 1970s and married in 1979, had two children. Shortly after their marriage, they separated and eventually the two children came to live with Craig Peden.

[30] In 1987, Craig Peden married his second wife, Anne. He and Anne, and the two children, moved to California, where Anne resided. While in California, Craig Peden appears to have been successful both in his business as an appraiser and also in other financial investments. He testified to a comfortable lifestyle. Anne worked in the high tech industry and he testified that prior to the year 2000 when she retired, they had a stock portfolio in excess of one million dollars, in addition to other assets.

[31] In 2002, Craig Peden and his second wife Anne separated and divorced. The separation appears to be a difficult one with the finalization of it only occurring in 2005, and the equalization distribution payments being received by him in May 2006.

[32] Craig Peden deposes to a significant downturn in his circumstances in 2003. He deposed that one year after the separation, he came in contact with HIV and was diagnosed in September 2003, as being HIV positive. He was diagnosed with what was referred to as full-blown AIDS in January 2005.

[33] Craig Peden’s business was wound down in October 2003. Since that time, he has had considerable medical costs and deposes to being currently living at an almost subsistence level. He claims currently to have only disability income of (US)$552 a month.

[34] The evidence of Craig Peden as to his financial circumstances was somewhat underwhelming. Although he claims to live on disability payments of (US)$552 a month, he has a condominium in Vancouver which has considerable equity which he rents out. He operated two vehicles for reasons which are uncertain. He pays monthly storage fees to keep furniture in storage. He attends regularly for massages at a health club and pays a health club membership. He has not filed income tax returns since 2002. While claiming poverty, he has made significant advances to his children.

[35] At times during his evidence, Craig Peden showed considerable anger. His anger was directed towards his father, who he views as an abusive alcoholic who did not give him opportunities he gave his eldest son. He was clearly bitter about his unfortunate health circumstances. He showed bitterness towards his elder brother, Gary, who he felt also had long ago excluded him from the family business and who he clearly feels received substantial financial benefit as a result of being able to take over the family business. Of note, he produced in evidence as an example of Gary Peden’s wealth the tax assessments of Gary Peden’s home and recreational property. He did not provide the court with the benefit of a tax assessment for his own property in Vancouver which he rents.

The Law:

[36] Section 2 of the Wills Variation Act, R.S.B.C. 1996, c. 490 ("the Act"), reads as follows:

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.

[37] The leading case in interpreting the Act is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, 93 B.C.L.R. (2d) 145, a decision in which the Supreme Court of Canada sought to clarify the principles which should apply to a claim under the Act.

[38] The deceased in Tataryn was married and had two adult independent sons. His estate was worth a little over $300,000.00. He left his wife a life interest in the family home and furnishings together with a life interest in the residue of the estate. The older of the two sons was completely excluded. The residue of the estate, along with a specific bequest of a rental property, went to the younger son. The Will contained reasons for excluding the elder son. The trial judge found that the evidence did not establish that the deceased had justification for the total rejection of the eldest son.

[39] At the Supreme Court of Canada, McLachlin J., as she then was, found the language of the Wills Variation Act confers a broad discretion on the court to determine whether adequate provision has been made for the proper maintenance and support of the applicant, and, if not, to order what is adequate, just and equitable in the circumstances. Further, McLachlin J. clearly points out in paragraph 28 that the Act must be interpreted in light of "society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards."

[40] In many of the cases following Tataryn where there has been a disinheritance or unequal treatment between children, there is almost inevitably a focus on whether or not there is a "logical connection" between the disinheritance or unequal treatment and the reasons for it, and whether or not those reasons are "valid and rational", in the language of the cases.

[41] One of these cases is Ryan v. Delahaye Estate (2003), 124 A.C.W.S. (3d) 610. In that case the Will of a last surviving parent left 80% of her $650,000 estate to her 54-year old son and 20% to her 60-year old daughter. The reasons for the unequal distribution were given in the Will as:

I have carefully considered my obligations toward my said children and have subsequently made the above distribution for the following reasons. Bernard has been of great assistance to me and to his father over the years and the distribution has been made in special recognition of that devotion. Marcelle seldom visits or contacts us on her own initiative, only on request from us. Another reason for the above distribution is that Marcelle was the recipient of my late mother-in-law's entire estate in 1966 which was bequeathed to my husband but which he gave over to her.

[42] The plaintiff daughter argued that the reasons noted in the Will were factually inaccurate. The defendant son argued that "in making some provision" for the daughter, the testatrix met her moral obligation "and that the court should respect her testamentary autonomy."

[43] Madam Justice D.M. Smith in Ryan opined as follows:

[7] The issue to be determined is whether the unequal distribution was valid and rational based on the reasons provided by the testatrix in her will. If the court concludes that the reasons were not based on fact, or not logically connected to the unequal distribution, then it must determine what distribution would be adequate, just, and equitable in the circumstances.

[44] The Court reviewed some of the principles from the Tataryn decision and the Court of Appeal's subsequent decision in Gray v. Gray Estate (2002), 98 B.C.L.R. (3d) 389, and concluded at ¶ 67 that "[i]n 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."

[45] The Court reviewed the family history with some care and noted that two of the three reasons expressed in the Will were simply not accurate, and that while there was some truth to the first reason relating to the son's "great assistance", that reason ignored the fact that the daughter had also been of "considerable assistance." The Court also noted that, in contrast to what appeared to be grossly shabby treatment of the daughter, the parents had provided compensation for the son's efforts. The Court noted that:

[77] ... The father paid for Bernard's education to become an electrician, which in turn permitted Bernard to earn a reasonable livelihood for the support of his family. Marcelle did not enjoy such a benefit. The father refused to pay for her to obtain nurse's training and her employment skills remained limited. For most of her adult life she has been on welfare. Bernard also received an interest-free loan of $20,000 from the parents which allowed him to purchase a starter home, even though it was not of his choosing.

[46] The Court concluded that the testatrix's unequal distribution of her estate did not provide for the proper maintenance and support of the daughter and that an adequate, just and equitable distribution would be to give her an equal share of the estate.

Analysis:

[47] The evidence here discloses that the Will provides for unequal treatment of the three sons in two ways.

[48] Firstly, the Will gives an extra $150,000 gift to Craig Peden and a life estate in a corresponding amount to the plaintiff, giving as reasons "careful consideration of their respective financial circumstances," and, in particular, pointing to benefits given to Gary Peden in the sale of the assets of S.J. Peden Ltd.

[49] While there is no evidence with respect to the accuracy of the Testator's notion that somehow Gary Peden has any particular financial advantage in his dealings with his father, it does appear that of the three sons he was the most financially secure. It is equally clear that the plaintiff at the time of the Will being executed had the least financial security of the three brothers. At that time, both Gary Peden and Craig Peden were financially secure.

[50] In regards to this inequality, Gary Peden, the son who loses out as a result of this ultimately unequal division, has not in any way contested this aspect of the Will. The evidence before me suggests that on this point Peden Sr. addressed his mind as to how to be fair to his sons. He and he alone knew the basis of the calculation that he went through in order to come up with this dollar figure in 1995. Craig Peden disputes this aspect, suggesting that the dollar figure should be greater because of time. I find no evidentiary basis for that.

[51] In this aspect of the distribution under the Will, I find that the testator has recognized a moral responsibility to be fair amongst his children and has made a reasonable adjustment to an equal division between his children in order to create some level of fairness. He has acted judiciously. There is a logical connection between past advances or preferences and the unequal treatment. I cannot on the basis on what he did, conclude that in this circumstance, adequate provisions for the proper maintenance of his child Gary Peden was not made.

[52] The second way that the Will treats the sons unequally is in the fact that the gifts to the two eldest sons are outright, while the gift to the plaintiff is only a life estate interest. While it is not possible to give exact figures, the capital available for the life estate for the plaintiff would be approximately $610,000. Assuming a net rate of return of 4%, which may in fact be above market rates, this amount would be $24,400 per year before taxes.

[53] Clearly, the benefit of such a life estate gets larger if one lives longer, but if one’s life is short, it could be almost insignificant compared to the substantial immediate gifts to his brothers and their share of the remainder of the life estate. I agree with what was argued by plaintiff’s counsel: that in such a circumstance, this is almost close to disinheritance.

[54] Additionally, one could look upon the gift to the plaintiff as not really much of a gift at all. It is the use of monies for a time, perhaps long, perhaps not, with the possibility of advances on capital, or perhaps not. Eventually, after whatever “use” of the money the plaintiff has, or is allowed to have, it is a gift over to his brothers.

[55] It seems clear from the evidence of Smith that the real reason for the testator treating the plaintiff differently was the plaintiff’s sexual orientation. There is even pre-Tataryn authority that homosexuality is not a factor in today's society justifying a judicious parent disinheriting or limiting benefits to his child. (See Patterson v. Lauritsen (1984), 58 B.C.L.R. 182, [1984] 6 W.W.R. 329)

[56] I agree with and endorse the conclusion of Justice D.M. Smith in the decision in Ryan. I find it applicable here, where there is no such "logical connection" or "valid and rational" reasons for an unequal distribution, and where "contemporary standards create a reasonable expectation of children sharing equally in a parent's estate." Further, the comment of the Supreme Court of Canada in Tataryn about the Act being interpreted in light of what a “judicious person”, considering community standards, would do in the circumstances, is helpful.

[57] A preliminary consideration in any analysis of a will under the Act, and specifically any allegation of a testator’s obligation to his spouse or children, must have a time-related context. In their submissions, counsel mentioned that the time context may be the date of the Will, in this case, August 1995, or the time that the testator last had testamentary capacity, a date likely in 2002. On either August 1995 or in 2002, a number of the circumstances should have weighed on the testator’s mind.

[58] On both those dates, Peden Sr. had three sons two of whom were quite successful, Gary Peden and Craig Peden. His third son, Peden Sr. would know in 1995, was not regularly employed and had taken substantial time away from any opportunity to earn income to care for his grandmother and his mother. Peden Sr. would know that his son, the plaintiff, was living off savings, or being supported by his partner.

[59] By 2002, Peden Sr.’s knowledge of the plaintiff’s circumstances would be greater. While it is reasonable to conclude that the care of Lena Walker and Anne Peden indirectly benefited Peden Sr., it is abundantly clear by 2002 that the role the plaintiff had undertaken in his family, that of caregiver for elderly relatives, was of a direct benefit to Peden Sr. It is logical to conclude that the last years of Peden Sr.’s life, from the time of his illness until his death, would have been much more difficult for Peden Sr. if it had not been for the constant attention and sacrifice of the plaintiff. It is logical to conclude that much of the care given would have, in the absence of the plaintiff, cost Peden Sr. financially, thus reducing the estate, perhaps considerably. No payments were received by the plaintiff from 1996 to 2003 for the constant care and assistance he gave his father. Peden Sr. would know by 2002 how much time the plaintiff dedicated to care of family members, and could logically conclude that there was a significant financial cost the plaintiff bore as a result of the plaintiff’s sacrifice.

[60] In all of the circumstances, whether one considers them in 1995 when the Will was drafted in 2002, the last time Peden Sr. likely had testamentary capacity, the role that the plaintiff took in Peden Sr.’s life and the life of his extended family, in my view, created a substantial moral obligation on the testator to consider the sacrifices of the plaintiff in the distribution he made in the Will.

[61] To the contrary, despite the considerable sacrifice and effort of the plaintiff, of both direct and indirect benefit to Peden Sr., Peden Sr. refused to recognize the moral obligation by treating the plaintiff equally with his brothers.

[62] Despite the language in the memorandum attached to the Will, I find the evidence of Smith compelling as to the reasons for the testator’s decision to treat the plaintiff differently than his other sons. Clearly, Peden Sr. did not approve of the plaintiff’s sexual orientation. The suggestion in the memorandum that he wished funds from his estate to stay within the Peden family is not consistent with the balance of the distribution under the Will. Although it may seem logical that his two other sons, with children, would leave their estate to their children, thus to “Pedens”, there is no such requirement placed on the elder sons, nor are there conditions on the gifts to the elder sons to ensure that this in fact happens with the balance of the estate. The restriction is only placed on the plaintiff. There are a number of mechanisms through trusts which Peden Sr. could have employed, if in fact his desire was to keep his estate within the confines of the Peden family. He did not make use of any of those mechanisms, choosing instead to simply place restrictions on the gift to his one son. Again looking at the 1995 or 2002 analysis, Peden Sr. would know that he had two successful sons who, at least at that time, appeared to want for nothing. He had a third son, who had sacrificed his work and career in order to assist his extended family, a son who had lived on social assistance for at least part of the time while caring for relatives, a son whose partner had also left the work force to assist in looking after elderly relatives, and a son whose health was in a questionable state.

[63] By ignoring the sacrifice of the plaintiff which was for his direct and indirect benefit, and by ignoring the needs of the plaintiff, which were clearly apparent, I have concluded that this testator, Peden Sr., did not make adequate provisions for the proper maintenance and support of his child, the plaintiff. For this reason, I ordered that the life estate aspect of the Will be set aside, and that the funds payable under the Will to the plaintiff be made by way of direct gift.

[64] Counsel for the executors and counsel for the defendant Gary Peden did not take part in this proceeding. Gary Peden attended on his own throughout the proceedings. Both counsel for the executors and counsel for Gary Peden in his personal capacity requested at the commencement of trial the opportunity to speak to the issue of costs. Should the parties be unable to agree on costs, they are at liberty to have that matter brought back before me at a convenient time for counsel.

“J. Groves, J.”
The Honourable Mr. Justice J. Groves