IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Tomlyn v. Kennedy,

 

2008 BCSC 331

Date: 20080318
Docket: S66410
Registry: Kelowna

Between:

Michael Jon Tomlyn

Plaintiff

And

Mark Kennedy, Executor of the Estate of Pauline Herchenson, Deceased,
Lorna Herchenson, Evelyn Grottoli, Angela Grottoli, British Columbia Society
for the Prevention of Cruelty to Animals, Debbie Manning, Sheila Langley, Claire Mitton, Velda Lefere, Richard Hollen, Michael Bercha, Royal City Humane Society of New Westminster British Columbia, Raymond Olson,
Francis Tomyn, Derrick Larson, Desiree Gurel, Dillon Gurel and Nathan Gurel

Defendants

 

Before: The Honourable Mr. Justice Brooke

Reasons for Judgment

Counsel for the Plaintiff:

J.E. Humphries

Counsel for the Defendant, M. Kennedy:

M. Eeles

Counsel for the Defendant, L. Herchenson:

R. Kasting

Counsel for the Defendant, V. Lefere:

A.M. Laing

Counsel for the Defendant, M. Bercha:

W. Dushinski
J. Gordon

Counsel for the Defendant, Humane Society:

G. Bondoreff

Counsel for the Defendant, Mr. & Ms. Gurel:

D. Kermode

Date and Place of Hearing:

September 19, 2007

 

Kelowna, B.C.

[1]                The plaintiff in this Wills variation action was born on June 6, 1943, in Edmonton, Alberta.  His name at birth was Johnnie Michael Tomyn, but he changed his name to Michael Jon Tomlyn, as appears by the certificate of change of name issued on September 22, 2003.

[2]                The plaintiff had two brothers:  George Edward Tomyn, who was born on September 26, 1944, and died September 19, 1994; and Francis Tomyn, who was born on March 15, 1942, and is joined as a defendant in this action.  The plaintiff and his brothers were the children of the late Pauline Herchenson (formerly Tomyn) and Harry Tomyn.

[3]                The plaintiff and his two brothers were apprehended on January 14, 1945, and made permanent wards of the superintendent of child welfare for Alberta on April 27, 1945.  The plaintiff and his brothers were separated.  The plaintiff and his brother, Francis, were placed in different foster homes.  The plaintiff remained in foster care until he was eight years old, at which time he was held in the provincial training school until he was 26 years old because of what was seen to be a “mental defective – high moron” incapacity.  When he was 12 years of age, the plaintiff was sterilized involuntarily.  The plaintiff’s brother, Francis, left school in Grade 8 and has worked as a labourer since then.

[4]                George Edward Tomyn was adopted and became known as George Alfred Gurl.  The four children of the late Mr. Gurl are joined as the defendants:  Derrick Larsen, Desiree Gurel, Dillon Gurel and Nathan Gurel.

[5]                Neither the plaintiff nor his brothers ever saw their mother after January 1945.  At that time, the plaintiff was 18 months old; his brother, George, was three months old; and his brother, Francis, was little more than two and one-half years old.  The plaintiff is now in his 65th year and Francis is in his 66th year.

[6]                The plaintiff’s mother remarried and was known as Pauline Herchenson.  She was predeceased by her husband and died on June 23, 2003, leaving no other surviving children other than the plaintiff and Francis Tomyn.  Probate was granted to her Will on June 18, 2004, and this proceeding was commenced on November 16, 2004, seeking an order under the Wills Variation Act, R.S.B.C. 1996, c. 490, for such provision as the court thinks adequate, just and equitable in the circumstances.

[7]                The plaintiff seeks summary trial and judgment pursuant to Rule 18A.  I am satisfied that I can find the facts necessary to decide the plaintiff’s claim and that it would not be unjust to do so in a summary way.  Those parties that wished to complete examinations for discovery have been given an opportunity to do so.  Notices to admit have been delivered and interrogatories obtained.

[8]                The plaintiff’s claim is grounded in s. 2 of the Will Variation Act, which 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.

[9]                The Will of the testatrix was drawn by a solicitor and runs for some eight pages.  The defendant, Mark Kennedy, the testatrix’s accountant is appointed as her executor and trustee, certain specific gifts are given of personal effects and household items of modest value, and cash gifts totalling $270,000 are made (four gifts of $5,000 each to friends; a gift of $25,000 to the testatrix’s niece, Angela Grottoli; $50,000 to her nephew, Richard Hollen; $50,000 to her nephew, Michael Bercha; $75,000 to the testatrix’s daughter-in-law, Lorna Herchenson; and $50,000 to the Royal City Humane Society).

[10]            In addition, a fund of $50,000 was set aside for the testatrix’s half-brother, Raymond Olson, from which the trustee is directed to pay $400 per month for Raymond (“Raymond’s Fund”) with the balance of the fund falling into the residue of her estate upon Raymond’s death.

[11]            The testatrix also set aside a fund of $15,000 for the care, maintenance and upkeep of her dog, Katie, with what remains of that fund to fall into residue upon the death of Katie.  In addition, Katie is given to the testatrix’s friend, Sheila Langley, who is also given the home of the testatrix with Sheila’s right of possession continuing one year after the death of Katie.  Katie died on November 30, 2006, and the home has now been sold.

[12]            The testatrix then goes on to establish a “Children’s Fund”, which provides:

...I direct my Trustee to hold the residue of my estate in a fund (the “Children’s Fund”):

(a)        until the date (the “Material Date”) which is the earliest of:

(i)         the date which each of my sons, Francis Tomyn (“Francis”), John Tomyn (“John”) and Edward Tomyn (“Edward”) have been located; or

(ii)        one year from the date of death of Katie;

and to divide the Children’s Fund into equal shares and to give one of those shares to each of my sons, Francis, John and Edward, who have been located and who survive me for thirty days;

(b)        on the Material Date, if all of Francis, John and Edward have not been located, to divide the Children’s Fund into equal shares and to give one of those shares to each of Francis, John or Edward who have been located and who survive me for thirty days;

(c)        it is my wish that, upon my death, my Trustee make any and all reasonable efforts to locate Francis, John and Edward, including employing any person in any profession, trade or business which my Trustee decides is necessary in locating Francis, John and Edward;

(d)        if Francis, John or Edward are located and does not survive me for thirty days but leaves any children who survive me for thirty days, to create an equal share for my deceased son from the Children’s Fund, to divide that share equally among his children who survive me for thirty days, and to give that share to those children according to that division;

(e)        if Francis, John or Edward are located and does not survive me for thirty days and does not leave any children who survive me for thirty days, no share will be created for my deceased son or the spouse or issue of that deceased son;

(f)         on the Material Date, if all of Francis, John and Edward have not been located or if all of Francis, John and Edward are located but do not survive me for thirty days and leave no children surviving me for thirty days, I direct my Trustee to:

(i)         to divide the Children’s Fund into equal shares and to give one of those shares to each of my nieces Marie Kipling (“Marie”) and Angela;

(ii)        if Marie or Angela does not survive me for thirty days no share will be created for my deceased niece or the spouse or issue of that deceased niece.

[13]            The value of the estate for the purposes of probate was $496,130.36 with the testatrix’s house being valued at $240,700.  The value as appears by the appraisal as of December 18, 2006, is significantly greater at $475,000 which reflects not improvements to the house but a general rise in real estate values in the lower mainland of British Columbia.

[14]            In answer to interrogatories, the executor valued the liabilities of the estate at in excess of $104,000 made up of accounting fees in the amount of $1,600; real estate commission (on a sale price of $475,000), $14,500; capital gains (on the increase in value from $207,000), $30,000; executor’s fees, $47,500; legal fees in connection with the administration of the estate, $5,000; and expenses in respect of the fund for Raymond, $6,000.  In addition, the executor estimated the property management and maintenance costs, as well as income taxes and accounting fees, would amount to almost $23,000.

[15]            While some adjustment would have to be made to these liabilities and expenses to reflect a lower selling price, for the purposes of determining the net value of the residue of the estate, I treat the estimated liabilities and expenses as $80,000.  Thus, if the gross value of the estate is treated as $500,000 and the specific bequests of $270,000 are deducted, as well as the anticipated liabilities and expenses of $80,000, the result is that the value of the residue is $150,000.

[16]            From that $150,000 would have to be deducted the $50,000 for the creation of Raymond’s Fund, some of which may fall into residue upon the death of the cestui que trust.  The initial amount of the residue is approximately $100,000.

[17]            Clearly the testatrix intended to ultimately make provision for her children if her children could be found, and if they survived her or left children surviving her.  However, the amount of $150,000 from a $500,000 estate provides an indication of what was in the testatrix’s mind at the time she made her Will.

[18]            In the result, the amount available is considerably greater than this.  The house was sold at in excess of $475,000 and together with investments, term deposits and bank accounts, the estate amounts to $679,370 as at January 8, 2007.  When the specific bequests of $270,000 are deducted, as well as the greater amount of the liabilities and expenses as calculated by the executor in the amount of $127,000, it leaves approximately $283,000 before deducting the $50,000 for Raymond’s Fund, which would then reduce the residue available for distribution to the children to little more than $233,000 or about $77,000 each, plus the residue if any of Raymond’s Fund.

[19]            Although the plaintiff, Michael Jon Tomlyn, commenced this action, his brother, Francis Tomyn, may be treated as a claimant pursuant to s. 4 of the Wills Variation Act.  Their biological brother, George, who died in 1991, ceases to be a child of the testatrix as result of his adoption.  Thus, the only persons entitled to apply under the Wills Variation Act are Michael and Francis.

[20]            The children of George nevertheless retain an interest under the Will as residuary beneficiaries standing in the shoes of their father.  Thus, giving effect to the Will would result in approximately $232,000 (rounded) falling into residue, plus the residue of Raymond’s Fund.  I proceed on the basis that the provision made by the Will amounts to little more than $232,000 out of a gross estate of $680,000 (rounded).  For the purposes of the plaintiff’s claim, I treat that as including the claim of his brother, Francis, but excluding such claim as George might have had that has been extinguished by his adoption.

The Law

[21]            A useful summary of the law in British Columbia is set out by Madam Justice Satanove in Clucas v. Clucas Estate, [1999] B.C.J. No. 436 (S.C.) at para. 12, where she said this:

Many cases have been decided under the Wills Variation Act.  The considerations governing the court's decisions have evolved over time and there is a fairly comprehensive set of competing principles to which effect must be given.  I have endeavoured to summarize these as follows:

1.         The main aim of the Act is the adequate, just and equitable provision for the spouses and children of testators.  (Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807)

2.         The other interest protected by the Act is testamentary autonomy.  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.  (Tataryn, supra)

3.         The test of what is "adequate and proper maintenance and support" as referred to in s. 2 of the Act is an objective test.  The fact that the testator was of the view that he or she adequately and properly provided for the disinherited beneficiary is not relevant if an objective analysis indicates that the testator was not acting in accordance with society's reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards.  (Tataryn, supra; Walker v. McDermott, [1931] S.C.R. 94; Price v. Lypchuk Estate (1987), 11 B.C.LR. (2d) 371 (C.A.); Dalziel v. Bradford et al. (1985), 62 B.C.L.R. 215 (B.C.S.C.))

4.         The words "adequate" and "proper" as used in s. 2 can mean two different things depending on the size of the estate.  A small gift may be adequate, but not proper if the estate is large.  (Price v. Lypchuk Estate, supra)

5.         Firstly, the court must consider any legal obligations of the testatrix to her spouse or children and secondly, the moral obligation to her spouse or children.  (Tataryn, supra)

6.         The moral claim of independent adult children is more tenuous than the moral claim of spouses or dependent adult children.  But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made.  (Tataryn, supra)

7.         Examples of circumstances which bring forth a moral duty on the part of a testator to recognize in his Will the claims of adult children are: a disability on the part of an adult child; an assured expectation on the part of an adult child, or an implied expectation on the part of an adult child, arising from the abundance of the estate or from the adult child's treatment during the testator's life time; the present financial circumstances of the child; the probable future difficulties of the child; the size of the estate and other legitimate claims.  (Dalziel v. Bradford, supra and Price v. Lypchuk, supra)

8.         Circumstances that will negate the moral obligation of a testatrix are "valid and rational" reasons for disinheritance.  To constitute "valid and rational" reasons justifying disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance.  (Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (B.C.C.A.); Comeau v. Mawer Estate, [1999] B.C.J. 26 (B.C.S.C.); and Kelly v. Baker (1996), 15 E.T.R. (2d) 219 (B.C.C.A.))

9.         Although a needs/maintenance test is no longer the sole factor governing such claims, a consideration of needs is still relevant.  (Newstead v. Newstead (1996), 11 E.T.R. (2d) 236 (B.C.S.C.))

[22]            In Clucas, the testatrix left an estate of approximately $440,000, and she was survived by two children and five grandchildren.  The plaintiff, her son, was to receive a life interest in the earnings of one-third of the residue which, upon his death, would pass to the five grandchildren when they reached the age of 25.  The remaining two-thirds of the estate were to be held in trust for four of the testatrix’s grandchildren.  No provision was made for the testatrix’s daughter, who was described as having an estate worth approximately $600,000.  No claim was made by the daughter who deposed that the plaintiff had received inter vivos gifts of some $200,000.

[23]            The plaintiff was found to be 53 years of age and to have worked as a stock clerk and mail sorter until 1989, when as a result of the onset of Parkinson’s Disease, he was unable to work.  The court found that the plaintiff moved to a chronic care facility in 1994, that he was severely disabled physically but not mentally, that his income was a little less than $25,000 per year and his wife’s income a little more than $12,000 per year, and that the quality of his life would be enhanced if he had funds to pay for a care aid, as well as a vehicle and equipment to accommodate his disability.  The court found that the testatrix had no legal obligation to provide for the plaintiff but that she did have a moral obligation.  The plaintiff conceded that the testatrix had advanced funds or vehicles in the past, amounting to approximately $24,000 and that there was no evidence as to the advances alleged by the daughter of the testatrix in the order of $200,000.

[24]            The court found that the testatrix had not amply provided for the plaintiff during her lifetime, and at para. 22 and 23, Madam Justice Satanove said this:

[22]      In my opinion, $24,000 over six years and several cars over 30 years cannot be characterized as "ample".  $7,000 - $8,000 for each year in the future for a man in the plaintiff's position of deteriorating health, modest income with an aging spouse cannot be characterized as sufficient.

[23]      The defendants have no moral claim over the estate, but they enjoyed a good relationship with their grandmother and she wished them to share in her estate.  In considering the size of the award to the plaintiff I have endeavoured to preserve as much as possible the Deceased's testamentary intention.  I am converting the plaintiff's present life interest in the income of one-third of the residue of the estate to a lump sum payment of $200,000 from the estate...

[25]            The Reasons in Clucas were considered by Mr. Justice A.F. Wilson in Wilson v. Watson, 2006 BCSC 53.  There, the net value of the estate was approximately $104,000, and by her Will, 24 percent of the residue was left to each of the four defendants who were friends of the deceased, 3 percent was left to a niece of the deceased, and 1 percent was left to the plaintiff, the only surviving child.  The court found that the plaintiff was the only person to whom there was any moral obligation; none of the other beneficiaries being parties who would be entitled to apply to vary the Will under the Act.  It was also found that the plaintiff was an independent adult with a modest income of $45,000 per year and little savings.  The Will was silent as to the reasons for effectively disinheriting the plaintiff, but before the court were two letters dated the same date as the Will in which the deceased said that the plaintiff was “not worthy of even receiving that much (1 percent of the estate)” and further that he “has treated me with great disrespect a long time”.  Counsel agreed that these statements are conclusions and cannot be seen as reasons for excluding the plaintiff from participating in the estate.  It was held that there was a moral obligation to make adequate provision for the plaintiff and, having regard to the size of the estate and the absence of others having moral claims to the estate, that an order for 50 percent of the net value of the estate was appropriate.

[26]            I have previously set out the modest circumstances of the plaintiff and his wife.  His income is less than $2,500 per month.  He is unemployable, owns an old truck, and rents a home.  The testatrix’s son, Francis, is now 65 years old and continues to work, earning a monthly income of little more than $2,900 per month.  He and his wife are paying $400 per month on a consumer proposal under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3, as well as property taxes and pad rent in respect of the mobile home where he and his wife live.  His debts, including the mortgage, the consumer proposal and an obligation to Alberta Health Care, total more than $41,000.

[27]            Counsel for three of the four children of George Tomyn, who predeceased the testatrix, concedes that those children have no standing under the Wills Variation Act but submits that they are entitled to the share in the estate provided by the testatrix’s Will in the event of their father’s death and that this amounts to approximately $85,000 in all (one-third of $255,000).

[28]            Two submissions have been filed by the defendant, Michael Burcha, who is a nephew of the testatrix.  It is submitted on his behalf that the testatrix owed no legal duty to any of her sons, they being independent adults, and that the moral claim of Michael and Francis is neither strong nor compelling.  It is also submitted that the testatrix owed no moral duty to her grandchildren (the four children of George) but, of course, provision is made for them by the Will.  It is further submitted that the principle of testamentary autonomy ought to be accorded the deference given it in Tataryn.

Discussion

[29]            The moral obligation of a testator to a child must be seen as commencing when the child is born.  The law of nature leaves each child utterly dependent upon his or her mother during infancy and, by extension, to childhood and later years a diminishing dependency.  The testatrix failed her children terribly.  We do not know her circumstances or the reasons for that failure, but we are left with the fact that the care of the children was placed with the apparatus of the state.  We know nothing of the testatrix’s conduct while the children were in her care, but we do know the sad history that unfolded after they were apprehended by the Ministry.  While such a challenging beginning does not invariably lead to a blighted life, that does seem to have been the lot of the children of the testatrix.  The plaintiff was placed in foster care until he was placed involuntarily in an institution, where he was sterilized, and from which he escaped by marrying.  He neither had the comfort and support of a mother or brothers but was left to his own slim resources to make his way in a competitive and sometimes cold and hostile world.  He was even denied the joys and the comfort of children of his own.  He now finds himself one of life’s wounded.

[30]            His brother, Francis, did not suffer incarceration and involuntary sterilization but he, too, grew up without parents, without siblings and without an extended family – all of which may be expected to provide affection, support and encouragement, not only during childhood but throughout his life.  He, too, finds himself much, much wounded by his beginnings.

[31]            There is little evidence concerning George other than that he was adopted, he later married and had children of his own, but for whatever reason or in whatever circumstances, he took his own life.  It is perhaps forgivable to speculate that at the least his life was not improved by his beginnings.

[32]            By her Will, the testatrix recognized an obligation to make provision for her children if they could be found.  She instructed her executor to make any and all reasonable efforts to locate them.  She provided for them out of the residue of her estate, which they or their survivors were to share equally.  There is no evidence that she made any effort to find her children during her lifetime, but she recognized, at the very least, a moral obligation to task her executor upon her death with finding her children, and she left them the residue of her estate.  It is important, I think, to note that the first $270,000 of her net estate is payable in specific bequests that two trusts are established for her dog, Katie, and her brother-in-law, Raymond, of $65,000 with what remains falling into residue.  Her estate was sworn for probate purposes in 2004 at approximately $496,000.  The amount actually realized, largely as a result of the appreciated value of her real estate, was some $679,000, against which the executor estimated liabilities at $104,600 and expenses at $22,990.  The result, by my calculations, is that there is approximately $550,000 available for distribution ($679,370 - $127,590).  In giving effect to the Will, specific bequests of $270,000 must be deducted, as well as the sum of $50,000 for Raymond’s Fund.  There is no evidence of what will likely remain of that fund upon Raymond’s death, and I therefore treat that as a deduction from the estate with a contingent residue resulting in the amount of approximately $230,000 for distribution amongst the children or surviving grandchildren of the testatrix.  That amounts to approximately $76,000 each, and the narrow issue is whether that is sufficient to discharge the testatrix’s moral obligation.

[33]            An amount of $230,000 represents less than one-half of the net distributable value of the estate, and approximately one-half of the net distributable value of the estate if Raymond’s Fund is included in the residue.  In addition to taking into account the amount of the net distributable estate, I must also consider those to whom the testatrix made specific bequests.  I find, first of all, that she owed none of them a legal or a moral duty in the sense that that expression is used in Wills variation proceedings.  Nevertheless, I must recognize the principle of testamentary autonomy and balance that principle against the moral duty that the testatrix owed her children.

[34]            I take into account that the testatrix made provision for her children or those that could be found out of residue, but there is no evidence that she had any more than a hope that they would be found.  There is also no evidence that she knew of their progress through life or of their circumstances at the time that she made her Will or at the time of her death.  In other words, I find that the testatrix did not know what became of her three sons (who at the time that she made her Will were between 59 and 61 years of age) or if each were living, nor did the testatrix know what her net distributable estate would amount to at her death.  If it were to be found that the provision of $75,000 for each child was sufficient to discharge her moral responsibility, having regard to the size of her estate, and such obligations as she might have to others, that would be a matter of mere happenstance.  The court then is very much in the position of objectively considering what a wise and judicious but not necessarily a loving parent in these circumstances would have done.  I find that the testatrix failed to discharge her moral obligation to her two surviving sons.  Balancing the principle of testamentary autonomy against that moral obligation, it is ordered that the plaintiff shall be entitled to $175,000 and the defendant, Francis Tomyn, shall be entitled to $125,000.

[35]            With regard to the residuary gift to the children of any deceased son, but for the variation of the Will in favour of the plaintiff and the defendant, Francis Tomyn, this would have amounted to approximately $80,000 to be divided amongst the four children of George Alfred Gurl.  Those grandchildren of the testatrix have no claim under the Wills Variation Act, nor do they have a moral claim against the estate.  It is ordered that $80,000 be paid to them in shares of $20,000 each.

[36]            The result of these provisions is that the monies remaining for distribution to satisfy the cash bequests of $270,000 and Raymond’s Fund of $50,000 is approximately $173,000.  I order that Raymond’s Fund be reduced from $50,000 to $25,000 payable to or for the benefit of Raymond Olsen at $400 per month and that, upon his death, what remains shall be payable to the Royal City Humane Society in substitution for and satisfaction of the specific bequest of $50,000.  The remaining specific bequests amount to $220,000 and the approximate monies available in payment of those bequests is approximately $148,000 less costs, which I will deal with below.  It is ordered that the beneficiaries of the specific bequests set out in para. 13 of the Will be paid rateably from the money available in substitution for and satisfaction of those bequests.

Costs

[37]            The plaintiff made an offer to the executor pursuant to Rule 37, and the plaintiff seeks double costs from the date of the offer accordingly.  The application of Rule 37 to Wills Variation Act proceedings was considered by Madam Justice Martinson in Steernberg v. Steernberg Estate, 2007 BCSC 953.  As was noted by Madam Justice Martinson at para. 27 and following, the executor is joined in his capacity as executor.  He was not entitled in his neutral role to make an offer nor, I find, is the executor entitled to accept an offer without the unanimous consent of all interested parties or the approval of the court.  I find that there was no offer that the defendant executor could accept without taking further steps.  I am satisfied that the executor remained neutral throughout and that he was of considerable assistance to the court.

[38]            It is also to be remembered that the purpose of the rule is to encourage settlement and to avoid the time, trouble and expense of trial.

[39]            I am satisfied that the court does have a broad discretion as to costs which, of course, must be exercised judicially.  In Vielbig v. Waterland Estate, [1995] 121 D.L.R. (4th) 485 (B.C.C.A.), it was determined that the general rule with respect to costs in Wills variation actions is that they should follow the event.  In the circumstances here, I am satisfied that the plaintiff is entitled to costs out of the estate on Scale B.  The defendant executor is entitled to his costs as special costs out of the estate.  Each of the other parties will bear his, her and their own costs.

“T.R. Brooke, J.”
The Honourable Mr. Justice Brooke