Date: 19970630 Docket: 17458 Registry: Vernon IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: WINNIFRED MAY CRERAR PLAINTIFF AND: HOWARD LAWRENCE, Executor of the Estate of DAVID COMRIE CRERAR, THE CANADIAN CANCER SOCIETY, RICHARD CRERAR, GEORGE CRERAR and PETER CRERAR DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE CLANCY Counsel for the Plaintiff: D.D. Kermode Counsel for the Defendant, Howard Lawrence, Executor of the Estate of David Comrie Crerar: L.C. Waterman Counsel for the Defendant, J.D. Truscott and The Canadian Cancer Society: S.L. Enticknap Counsel for the Defendant, Richard Crerar: J.G. Carphin Counsel for the Defendant, George Crerar: D.A. Helm Counsel for the Defendant, Peter Crerar: K.R. Crosby Counsel for the Public Trustee: R. Porszt Place and Date of Hearing: Vernon, B.C. May 29 and 30, 1997[1] Winnifred and David Crerar were married October 20, 1930. David Crerar died April 5, 1996 at the age of 94. Mrs. Crerar survives. She is now 89. Three children were born to the couple. Peter who is now 65, Richard who is 61 and George who is 56. Richard and George are married and have children. Peter has never married and has no issue. [2] The value of the estate of David Crerar is in excess of $2,000,000. In 1988 he made a will which was prepared by Howard Lawrence, the executor of the estate. In 1988 Mr. Lawrence understood, presumably from information given to him by the deceased, that the estate was worth approximately $1,000,000. In that will provision was made for Winnifred Crerar to have the income from $300,000, then a number of bequests were made and the residue was left to the Canadian Cancer Society with the wish expressed that the funds be used for research. [3] On April 8, 1992, on the instructions of the deceased, Mr. Lawrence prepared a second will. In that will Mr. Crerar instructed his executor as follows: (a) To transfer the family home and all of its contents to his wife Winnifred; (b) To deliver all of his tools to his son George Crerar; (c) To deliver articles of personal and domestic use to his wife Winnifred; (d) To set aside the sum of $500,000 as a "special fund" on the following conditions: (i) to pay the net income to Winnifred Crerar during her lifetime; (ii) following the death of his wife to divide the "special fund" into two equal shares one of which is to be paid to his son Peter and in the event of his prior death to the Canadian Cancer Society. The other share is to be paid to his son George for his own use but if he should die before Mrs. Crerar leaving issue then his share was to be held until the youngest of his children reaches the age of 25 then it is to be divided equally amongst the children. (e) To pay to George Crerar the sum of $100,000; (e) To pay and transfer the residue of the estate to the Canadian Cancer Society with the expressed wish that the funds be used for research. [4] Winnifred Crerar, Peter Crerar, Richard Crerar and George Crerar bring these proceedings. Each alleges that the will did not adequately provide for them and applies under the Wills Variation Act, R.S.B.C. 1979, c. 435 for a variation of the will to achieve to that end. They have proceeded by way of summary trial pursuant to Rule 18A of the Rules of Court. [5] The position of all members of the Crerar family is that Mrs. Crerar should retain the proceeds of the family home and her savings and should receive 70% of the estate. If that distribution were made, they say it would take into account any claims she might have under the Family Relations Act, R.S.B.C. 1979, c. 121 and on the principles of unjust enrichment. The residue of the estate would be divided equally among the three children and the Canadian Cancer Society. On the basis of a valuation of $2,000,000 for the estate Mrs. Crerar would receive approximately $1,400,000 and each of the residual beneficiaries $150,000. [6] The position of the Canadian Cancer Society is that Mrs. Crerar should retain the chattels left to her, that all debts be paid and that in recognition of her claim under the Family Relations Act, she receive a 50% interest in the residue of the estate which consists entirely of family assets. In addition, the Society contends that family assets consisting of the value of the family home at $107,000 and the savings of Mrs. Crerar which are acknowledged to be $98,000 should be included in the calculation. The Society says that Mrs. Crerar is not entitled to an unequal division of family assets pursuant to s. 51 of the Family Relations Act nor to an award for unjust enrichment. [7] As to the residue of the estate, the Society submits that the fact that the estate is reduced in value by reason of allowing Mrs. Crerar's claim under the Family Relations Act should be taken into account when determining the share due to the surviving children. Since Mr. Crerar left $600,000 to his sons Peter and George when he understood the estate would be valued at $2,000,000 but only $1,000,000 is available after providing for Mrs. Crerar, the Society suggests a reduction of 50% in the share of the estate to be divided among the children. It submits the children should share approximately $300,000. The Society takes no position on whether all of the children should share in that bequest. The balance should then go to the Canadian Cancer Society to fulfill the wishes of the testator. THE WILLS VARIATION ACT [8] The power of the Court to vary a will is found is s. 2(1) of the Wills Variation Act. It provides: Notwithstanding any law or statute to the contrary, if a testator dies leaving a will which does not, in the court's opinion, make adequate provision for the proper maintenance and support of the testator's wife, husband or children, the court may, in its discretion, in an action by or on behalf of the wife, husband or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the estate of the testator for the wife, husband or children. [9] A number of authorities have application to these proceedings but the leading authority on the interpretation of s. 2(1) of the Act is Tataryn v. Tataryn Estate (1994), 93 B.C.L.R. (2d) 145 (S.C.C.). In that decision the Court held that the Act conferred a broad discretion on the trial judge to make orders which are just, when considered in the light of the circumstances and of contemporary standards. [10] The interests said to be protected by the Act are the adequate, just and equitable provision for spouses and children and the limited testamentary autonomy of the testator. Testamentary autonomy is: ... required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was "adequate, just and equitable in the circumstances. (p. 151) [11] The Court rejected need as a factor in interpreting the Act. [12] In interpreting the phrase "adequate, just and equitable" McLachlin J. held as follows: If the phrase "adequate, just and equitable" is viewed in light of current societal norms, much of the uncertainty disappears. Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in Society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is "adequate, just and equitable" in the circumstances of the case. (p. 155) [13] She went on to hold that the first consideration must be the testator's legal responsibilities during his lifetime and said: It follows that maintenance and property allocations which the law would support during the testator's lifetime should be reflected in the Court's interpretation of what is "adequate, just and equitable in the circumstances" after the testator's death. The legal obligations on a testator during his or her lifetime reflect a clear and unequivocal social expectation, expressed through Society's elected representatives and the judicial doctrine of its courts. Where provision for a spouse is in issue, the testator's legal obligations while alive may be found in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) family property legislation and the law of constructive trust: Pettkus v. Becker, [1980] 2 S.C.R. 834; Sorochan v. Sorochan, [1986] 2 S.C.R. 38 [[1986] 5 W.W.R. 289]; Peter v. Beblow, [1993] 1 S.C.R. 980 [[1993] 3 W.W.R. 337]. Maintenance and provision for basic needs may be sufficient to meet this legal obligation. On the other hand, they may not. Statute and case law accepts that, depending on the length of the relationship, the contribution of the claimant spouse and the desirability of independence, each spouse is entitled to a share of the estate. Spouses are regarded as partners. As L'Heureux-Dub‚ J. wrote in Moge v. Moge, [1992] 3 S.C.R. 813, at p. 849 [[1993] 1 W.W.R. 481]: ... marriage is, among other things, an economic unit which generates financial benefits...The [Divorce] Act reflects the fact that in today's marital relationships, partners should expect and are entitled to share those financial benefits. The legal obligation of a testator may also extend to dependent children. And in some cases, the principles of unjust enrichment may indicate a legal duty toward a grown, independent child by reason of the child's contribution to the estate. (pp. 155-156) [14] In dealing with the specific facts before her in Tataryn McLachlin J. said: Under the Divorce Act and the Family Relations Act she would have been entitled to maintenance and a share in the family assets had the parties separated. At a minimum, she must be given this much upon the death of her spouse. (pp. 157-158) It was clearly her view that, on the facts before her, the exercise of the courts discretion in considering whether to vary the will required that provision be made for the surviving spouse in an amount equal to the spouse's entitlement to maintenance and the share in the family assets, had the parties separated during their lifetime. [15] In considering the testator's moral obligations McLachlin J. held the following: For example, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits. Similarly, most people would agree that an adult dependent child in entitled to such consideration as the size of the estate and the testator's other obligations may allow. While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made....[citations omitted] (p. 156) [16] And at page 157: 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. [17] As I understand Tataryn, the proper point at which to begin the analysis is to determine the legal obligations of the testator and to ensure that he has met them. The Court must next consider the moral obligations owing by the testator to his spouse and children. They too must be met. Consideration of moral duties can be extended beyond consideration of the moral obligations owing to the spouse and children, where the assets of the estate permit. THE LEGAL OBLIGATIONS OF THE TESTATOR [18] The legal claims of Peter, Richard and George Crerar rest on the principles of unjust enrichment. All three children describe working on the family farms after school, on weekends and during vacations. They were paid but, even by the standards of the times when they were children, their wages would appear to be low. Those claims cannot succeed. To establish unjust enrichment a plaintiff must show that a benefit has been conferred by him on the defendant, that there has been a corresponding deprivation to the plaintiff and that the defendant had no juristic right to retain the benefit: Becker v. Pettkus, [1980] 2 S.C.R. 834. [19] I adopt the reasoning of the Court in Strudwick v. Strudwick Estate (1996), 21 R.F.L. (4th) 185 (B.C.S.C.). In Strudwick Blair J. distinguished Clarkson v. McCrossen Estate (1995), 13 R.F.L. (4th) 237 (B.C.C.A.) on the basis that the plaintiff in Clarkson had an expectation of payment for her services whereas Mr. Strudwick did not. Mr. Strudwick's claim rested on services provided by him for his father's benefit while working on the family farm. Blair J. held that, in the circumstances, there was a proper basis for the limited enrichment resulting from those services. [20] I see no distinction based on the fact that Mr. Strudwick was an adult when he performed the services and the Crerar sons were children. The following finding of Blair J. is applicable: As a matter of public policy, such limited economic activity as occurred in this case involving father and son ought to be encouraged without necessarily attracting a subsequent claim for unjust enrichment. (p. 193) [21] I have no doubt that the Crerar sons worked very hard on the farm as children but there is evidence to show that other farm children at the time worked in the same manner on their family farms. Hard work was expected of children in those times and the Crerar children did receive remuneration. There is no suggestion that they anticipated some greater share in the farm for their labours. [22] Peter Crerar advances further facts in support of his claim based on unjust enrichment. After he left the family home he was asked to return and did so at age 25. Peter adduced no evidence in support of his claim but, in her affidavit, Mrs. Crerar stated that he had returned home to work in exchange for a promise from her husband that Peter would gain some type of ownership. He ranched for two seasons and Mrs. Crerar says that her husband ignored his earlier promises of ownership following which Peter left home once more. There is no evidence as to whether Peter was paid for his services nor of specifics of any promise made by the deceased. He does not say that he returned in the expectation of payment, which was not fulfilled. Mrs. Crerar does not describe specific conversations and there is nothing in writing. [23] It seems to me that more is required to establish a claim of unjust enrichment. As a minimum I would expect that evidence would be provided as to what services were performed and what remuneration was received. I would expect as well that the claimant would allege what his expectations were. Mrs. Crerar cannot do that for him. The claim of Peter based on unjust enrichment cannot succeed on this additional ground. [24] If the claims of the children of the deceased are to succeed that success must rest on the moral obligation owing to them by their father. [25] In asserting her claim for adequate provision Mrs. Crerar relies on two legal obligations of the testator. She says first that the deceased had a legal obligation to satisfy the maintenance and property allocations to which she would have been entitled had they separated during the lifetime of the deceased. Secondly she contends that the testator was obliged to take into account her claim based on unjust enrichment. [26] In Tataryn McLachlin J. held that the Supreme Court of Canada is not required, except on matters based on oral testimony, to defer to the findings of the trial judge. That finding rests on the decision of the Supreme Court in Swain v. Dennison, [1967] S.C.R. 7 at 12, 58 W.W.R. 232 (S.C.C.), where the Court held, that, on an appeal, an appellate court was free to substitute its discretion for the discretion exercised by the trial judge under s. 2(1) of the Wills Variation Act. The court did not purport to limit or fetter the discretion of the trial court to do what is adequate, just and equitable in a particular case. McLachlin J.'s finding that Mrs. Tataryn must be given, from the estate, her minimum entitlement under the Divorce Act and the Family Relations Act was case specific. [27] It seems to me that in every case the discretion of the Court must be exercised on the facts before it. If, for example, the legal obligation to the surviving spouse cannot be met without diminishing the estate to the point where it cannot meet its other legal and moral obligations, that is a circumstance which the trial judge would be required to consider. A minimum requirement to meet the legal obligation for spousal maintenance and a share in the family assets which would have arisen had the parties separated, would not allow the Court to balance competing interests. [28] In my opinion, Tataryn does not require the Court to meet the legal obligation owing to a spouse in priority to all other legal obligations. It would be more accurate to say that Tataryn holds that the exercise of judicial discretion under the Act requires the Court to take into account the legal obligation owing to a spouse for maintenance and support, which arises during the lifetime of the parties. [29] That is not to say that the reasoning of McLachlin J. is not helpful. I am guided in this matter by the principles enunciated in Tataryn. The estate of David Crerar has sufficient assets to meet its legal and moral obligations and to consider the entitlement of a spouse which would have arisen had there been a separation or divorce during the lifetime of the testator. To do so recognizes that there is a legal obligation owing to her which must be taken into account in exercising the discretion conferred by the Act. [30] If I had heard the issues of maintenance and property division as between Mr. and Mrs. Crerar during their lifetime there is little doubt that I would have ordered, as a minimum, that Mrs. Crerar was entitled to an undivided one-half interest in the family assets. Whether there should have been an unequal division of property pursuant to s. 51 of the Act, is more difficult. The family members urge an unequal division based on the greater efforts of Mrs. Crerar during the marriage. On the evidence before me I cannot accept that greater contribution as having been established. There is no doubt that Mrs. Crerar worked very hard and contributed more in the way of physical labour but there is no way of precisely quantifying her contribution so as to establish that her contribution to the value of the estate was greater than that of her husband. Mr. Crerar did contribute labour. He was a small man who smoked heavily but he did some manual work, provided supervisory duties and helped by driving farm equipment. His greatest contribution however was in handling the finances for the family and investing the proceeds of the various farms owned throughout the years. [31] In her evidence Mrs. Crerar emphasised her contributions but she also made it clear that Mr. Crerar's contributions were substantial. When asked on Examination for Discovery how the different ranches or farms the family owned through the years made money, she responded that it was by turning them over or selling them for more than they had paid for them. She said "he was very lucky that way". [32] When referring to either cattle or sheep ranching she invariably used the word "we" when describing how those animals were bought and sold. She agreed that her husband had handled all of the finances and agreed that he had done the farm work described. [33] Where both parties contributed substantially to the acquisition and preservation of family assets in the manner I have described I would not order judicial re-apportionment on the basis of fairness pursuant to s. 51(1) of the Family Relations Act. Following Tataryn I find that Mrs. Crerar is entitled to an undivided one-half interest in the estate and the will should be varied accordingly. [34] Mrs. Crerar also advances a legal claim based on unjust enrichment. As stated earlier, the thrust of her affidavit evidence is that she raised the children and provided most of the physical work on the various farms owned by the family throughout 65 years of marriage. She alleges that her husband's contributions consisted of some minor physical effort primarily in operating farm machinery, in providing supervisory services, in managing the finances of the farms and in investing funds which came into the hands of the couple while farming. [35] I have found that there is reason to be cautious in accepting that evidence even though Mrs. Crerar is supported by the evidence of her children. It is apparent from her Examination for Discovery that it was the deceased who made the decisions to sell and purchase properties occupied by the couple. That is perhaps overstated since there is evidence to show that she participated, particularly on one occasion when she persuaded her husband to pay a higher price than he wished to pay. That proved to be wise advice since timber on the property virtually paid for it. Nevertheless it is apparent that Mr. Crerar was the guiding financial person in the partnership. Mrs Crerar's submission that she could have managed the financial end of the farm as well as Mr. Crerar, had she been given the opportunity, is, at best, speculation. [36] Apart from the financial decisions made while operating the farm Mr. Crerar managed the investment of the farm income and capital in a highly successful manner. A large part of the growth of the financial base of the couple was due to his management. He, by all accounts, spent a good deal of time on his investments and he was successful. [37] I find that the facts as put forward support a conclusion that it was the combined efforts of Mr. and Mrs. Crerar that created the substantial estate which has been left. Mrs. Crerar has not suggested that she had any expectation of reward for her services. While there is no doubt that the efforts of Mrs. Crerar substantially enriched the estate and that she was deprived of many of the amenities of life during her years on the farms, those factors do not give rise to a claim for unjust enrichment. There is no need here to resort to the doctrine of unjust enrichment since Mrs. Crerar will be compensated in full for her services by succeeding in her claim for variation against the estate based on her rights under the Family Relations Act. To award her additional compensation on the basis of unjust enrichment for the services she provided as a marriage partner would be to award her double compensation. [38] Mrs. Crerar's claim for provision from the estate based on unjust enrichment is dismissed. She will be compensated for her efforts through recognition of the legal and moral obligations owing to her by the estate. Her services no doubt conferred a benefit on the estate and, had her legal and moral obligations not been recognized she would have been deprived. Recognition of those claims negates the suggestion that she will be deprived once an order is made under the Wills Variation Act. There is a juristic right for the estate to retain any benefit conferred. MORAL OBLIGATIONS OF THE TESTATOR [39] I have held that Mrs. Crerar is entitled, as a minimum, to an undivided one-half interest in the estate. She is entitled, as well, to consideration of her moral claim against the estate. The Court in Tataryn held: ... most people would agree that although the law may not require a supporting spouse to make provision for a dependant spouse after his death, a strong moral obligation to do so exists if the size of the estate permits. (p. 156) Since the size of the estate permits a greater share to be given to Mrs. Crerar, a reasonable expectation of what Mr. Crerar, acting judiciously, should have done is to have allowed her to retain her savings and the proceeds of the family home, in addition to satisfying her legal claim. [40] It would be unreasonable and contrary to the meeting of moral obligations to expect family assets held by Mrs. Crerar to be divided, when satisfying the legal obligation of the estate. To have the estate forego any claim against those assets would recognize the moral obligation owing to Mrs. Crerar by reason of her untiring efforts throughout a 65 year marriage. [41] Mr. Crerar disinherited his son Richard. His reasons for doing so were never expressed, although the affidavit material shows there was animosity between father and son over Richard periodically standing up for his mother's rights and over an incident involving disapproval by David Crerar of certain activities of Richard's son. The exchange of correspondence between father and son which followed was acrimonious. [42] It was submitted by the Canadian Cancer Society that testamentary autonomy requires that the Court uphold the wishes of the testator in disinheriting his son. The Society relied on Kelly v. Baker (1996), 82 B.C.A.C. 150 (B.C.C.A.) (B.C.). where Finch J.A., held at p. 160: The law does not require that the reason expressed by the testator in her will, or elsewhere, for disinheriting the appellant be justifiable. It is sufficient if there were valid and rational reasons at the time of her death - valid in the sense of being based on fact; rational in the sense that there is a logical connection between the reasons and the act of disinheritance. That expression of principle is undoubtedly correct but it must be read in conjunction with the principles enunciated in Tataryn in respect of moral obligations owing to the children of a testator. The legitimate concerns of Mr. Crerar must be taken into account but, as expressed by McLachlin J. in Tataryn, adult dependant children are entitled to such considerations as the size of the estate and the testator's other obligations may allow, unless there are circumstances which negate the existence of a moral obligation. [43] I accept as well that moral obligations owing to adult independent children must be balanced with considerations such as the child's relationship with his father. There is no doubt that, for good cause, a parent may disinherit a child: McRae v. Royal Trust Corporation (31 January 1997), Powell River S0119 (B.C.S.C.). [44] It is also well settled however that where competing claims permit, an adult self supporting child should receive a portion of the estate: Nulty v. Nulty Estate (1989), 35 E.T.R. 153 (B.C.C.A.). [45] That there is a parental moral duty to provide for adult independent children was recognized by Esson J.A. in Price v. Lypchuk Estate, (1987) 37 D.L.R. (4th) 6 (B.C.C.A.) at page 18: The view which has prevailed in the cases is that the moral duty or obligation of every parent is to make some provision by will for each of his children, whatever their age and condition of life and however generous the parent may have been in preparing the children for the battle of life; but subject to some exceptions where the estate is small. And at page 29: In summary, what emerges from the trend of the authorities is that testators will generally be found to be under a moral obligation not to disinherit any child. The exceptions to that general rule are more likely to arise when the estate is small, in which event one or more children may be disinherited if there is no compelling reason for making provision for them, and particularly if the estate is needed to support the surviving spouse. No doubt there are other possible grounds, including conduct, for refusing relief. But, in practice, effect is rarely given to them. [46] I find no logical connection between the incidents which apparently gave rise to the poor relationship between Richard Crerar and his father and the failure to provide for Richard. He stood up for his mother and argued that the behaviour of his son was appropriate. He showed no lack of respect towards his father in the written material produced for the Court. The evidence indicates that Mr. Crerar was a most difficult man with a very strict view of life which did not allow for any disagreement with his views. His disinheriting of Richard was not the act of a judicious parent. It was not valid in the sense of being based on fact or rational in the sense that there was a logical connection between the reasons and the act of disinheritance. The will must be varied to make provision for Richard. [47] The question then becomes how to accommodate the moral obligation owing by the testator to his three sons. The law does not require that they be treated equally but there is an indication that, had he recognized his obligations to Richard, Mr. Crerar would have wished to do so. He provided for Peter Crerar and George Crerar to receive the same amount of $250,000. The share of George Crerar was encumbered to the extent of providing that if he predeceased his mother then his share was to be held for his children until their age of 25. Perhaps to account for that condition or perhaps for other reasons he left to George an additional sum of $100,000 and his tools. [48] I see no reason to interfere with the provisions made for Peter Crerar and George Crerar except to the extent that the bequest to Peter Crerar should no longer be held in trust until his mother's death and to adjust the trust conditions affecting the bequest to George Crerar. It seems a reasonable expectation as well that the sum of $250,000, the amount favoured by the testator, should be left to Richard Crerar. THE CANADIAN CANCER SOCIETY [49] In reaching my conclusions I have not lost sight of the need to preserve, where possible, testamentary autonomy. I have tried to vary the provisions of the will only to the extent necessary to meet the legal and moral obligations of the testator. One of the clearly expressed wishes of the testator was to provide a substantial bequest to the Society. The size of the estate permits funds being made available over and above provision for Mrs. Crerar and the children. To leave intact the provision that the residue of the estate go to cancer research recognizes the legitimate concerns of the deceased. [50] I should make it clear that counsel for the Society did not advance its position in any adversarial sense. He outlined the very real needs of the Society for funding for its projects and the discomfort it felt in partially opposing the applications for variation. I accept that the Society had an obligation to the testator, its volunteers, staff and patients to advance legal and moral arguments in support of maintaining the bequest. CONCLUSIONS [51] There will be a variation of the will of David Crerar to provide for an undivided one-half interest in the estate to be paid to Mrs. Crerar for her own use absolutely. The family assets in her possession are to remain her property. [52] The will is varied to provide for a bequest to Peter Crerar of $250,000 for his own use absolutely. [53] The will is to be further varied to provide for the sum of $250,000 to be paid to the trustee to be held by him during the lifetime of Winnifred Crerar. If George Crerar should predecease Winnifred Crerar those funds will be held and transferred to the issue of George Crerar on the same terms as provided for in the will. If George Crerar survives his mother, the fund, including accumulated interest, will be paid to him for his own use absolutely. I agree with counsel for the Public Trustee that there is no reason why the testamentary autonomy of the testator should not prevail so as to include the trust provisions of the will in respect of satisfying the moral obligation owing to George Crerar. [54] The will of David Crerar is varied to provide for a bequest of $250,000 to Richard Crerar for his own use absolutely. [55] Such other of the terms of the will as may be necessary shall be varied to give effect to these orders, the intent being that the bequests to George Crerar of $100,000 and the tools of the deceased be preserved and the residue of the estate be paid to the Canadian Cancer Society on the terms set out in the will. If there disagreement among counsel on required amendments to the will there is leave to apply further on that issue. COSTS [56] No submissions were made on the question of costs. I would anticipate that the costs of all parties including the Canadian Cancer Society should be paid from the estate. With the consent of all parties that provision may be included in the order. If there is disagreement there is leave to apply on the question of costs. "D.L. Clancy J." D.L. CLANCY J.