Date: 19980511 Docket: S033284 Registry: NEW WESTMINSTER IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: NORBERT EMMERLING PLAINTIFF AND: GUNTER ESCHMENT, deceased and HILDA ALICE LANG, personal representative of the Estate of GUNTER ESCHMENT, deceased DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE E.R.A. EDWARDS Counsel for the Plaintiff: OTTO ZSIGMOND Counsel for the Defendant: BRIAN L. GIBBARD Place and Date of Hearing: NEW WESTMINSTER, B.C. MAY 8, 1998 [1] The plaintiff claims an interest in the real and personal property comprising the estate of the deceased. [2] The Statement of Claim asserts a claim to the real property on the basis of an express, or in the alternative, a resulting or constructive trust. An alternative claim is advanced for "restitution for [the plaintiff's] interest in the real property on the basis of quantum merit"(sic). [3] Both parties filed competing Rule 18A applications for summary judgment. [4] The plaintiff's motion for summary judgment seeks declarations that the defendants hold both the real and personal property of the deceased in trust for the plaintiff and associated relief compelling the transfer of that property to him or in the alternative "a determination of the interest of the plaintiff" in that property and a declaration that interest is held in trust for him. In the further alternative the plaintiff claims "restitution for quantum meriut (sic)". [5] The deceased's estate was valued $842,000 at the time of administration. He left no will. His intestate heirs are ten cousins. Nine of them, apart from the administratrix of his estate, lived outside Canada and had little or no contact with him in his final years. [6] The plaintiff, on the other hand, lived in the deceased's home from 1990 until he died in 1996, aged 67. According to the plaintiff, he initially moved into the deceased's basement suite as a tenant and over the years they became friends. Throughout this period neither was employed. The plaintiff received $475 per month social assistance, later reduced to $420. Initially he paid the deceased $300 per month rent. Later he says they shared expenses to which he contributed about $250 per month. [7] About four months after the deceased died in July, 1996, the plaintiff got his current job from which he earns $31,000 per year. He has remained in the deceased's home rent free pending this litigation. [8] The plaintiff's claim rests on two primary evidentiary bases. First, that the deceased told him and others that he intended to provide after his death for the plaintiff and, second, that the plaintiff contributed to the upkeep and maintenance of the deceased's house, nursed and cared for him in such a way as to establish a claim to the real property and/or for unjust enrichment. [9] The plaintiff deposed he was advised by the deceased in the year prior to his death that the deceased "was going to put something in writing and I was going to receive his property" and that the deceased told him "you will have the house and some monies and you will be well taken care of". [10] Irene Neitsch, a friend of the deceased and the plaintiff, deposed she discussed with the deceased his making a will, that she and the plaintiff would be executors and "it was my understanding [the plaintiff] would be a beneficiary". She also deposed the plaintiff and deceased had a "father and son relationship". [11] Horst Nobel, another friend of both the deceased and plaintiff deposed that the deceased told him he was grateful for things the plaintiff did to help him by way of maintaining his home and car and that he would "take care of [the plaintiff] and reward him for things he did on his behalf". [12] Franz Drescher deposed that he had known the deceased for 25 years, and that three months before his death he stated "I am going to leave everything to my friend [the plaintiff]" because the deceased was grateful for the care and attention the plaintiff had given him. He further deposed the deceased told him the plaintiff "...is just like a son to me and is much closer than my relatives". [13] The law is clear that none of this evidence can be considered as evidence of testamentary intent in the absence of a will. It cannot form the basis for any legal claim to the deceased's estate, nor does it create any express trust in the plaintiff's favour. This evidence is, however, some indication of the nature and extent of the services provided to the deceased by the plaintiff. [14] The plaintiff initially claimed an undivided one half interest in the deceased's real property. An amendment to the Statement of Claim and the submissions of plaintiff's counsel made it clear the plaintiff now claims the entire interest, valued at the date of death at $246,000. This claim is based on the fact the plaintiff did minor repairs, routine maintenance and lawn mowing during the period he lived in the deceased's house. He deposed he devoted an average of two hours per day to these tasks for the whole period he resided with the deceased. [15] The affidavit of James Dobney, a registered home inspector, attached an inspection report dated September 1997, and several photographs of the house. These confirmed his opinion that the house appeared generally neglected, had an appearance of being poorly maintained and that there was no indication anyone had been performing regular maintenance on the property. [16] There was no evidence the plaintiff made any significant monetary contribution to maintaining the property. Mr. Dobney's report satisfies me that the contributions he made in kind fell far short of what would be necessary to establish that what the plaintiff did maintained or enhanced the value of the property significantly enough to create for the plaintiff an interest in the property on any equitable principle. Mowing the lawn or doing odd repair or maintenance jobs at a friend's home on a voluntary basis is not enough to establish an equitable claim to that home or even a portion of its value. [17] The balance of the deceased's estate was personal property in the form of very liquid financial assets, principally bank accounts and term deposits. The deceased had a modest pension income. There is no evidence the plaintiff made any contribution to the deceased's acquisition of these assets either directly or indirectly by freeing the deceased from household chores so he could work to acquire them. [18] I find the plaintiff has no basis for claiming a constructive or other trust interest in the deceased's real or personal property. [19] During the last two years of the deceased's life, as his eyesight and general health failed, the plaintiff took care of many of the routine daily chores around the home, helped the deceased with meal preparation laundry and the like, drove him to appointments, and helped him administering insulin and eye- drops. He also acted as a friend and companion. All these things no doubt helped the deceased live out his final years, apparently contentedly, in his own home without paid help he would almost certainly have required had it not been for the plaintiff. [20] This case in some respects parallels two cases cited by counsel, Clarkson v. McCossen Estate (1995) 3 B.C.L.R. (3d) 82 and Beattie v. Badger Estate [1995] B.C.J. No. 2639, Vancouver Registry No. C933150, 11 December 1995. [21] In each case unjust enrichment was found and a monetary award for the value of services rendered was made on a "value received" or quantum meruit basis. In the Clarkson case the award was $125,000, in the Beattie case it was $18,000. The reasons for judgment in those cases do not disclose what portion of each estate these awards represented. I find the size of the estate is not a relevant consideration in attempting to determine the value of the plaintiff's services. [22] Counsel for the defendants argued that since there was no evidence on which to quantify the value of services provided by the plaintiff to the deceased, the action should be dismissed. I reject that submission. In both the Clarkson and Beattie cases the amount awarded was a matter of impression rather than calculation. [23] Despite the fact such a claim was not properly pleaded, but in light of the fact both counsel addressed the point in argument, I find the plaintiff is entitled to a monetary award based on the unjust enrichment of the deceased. [24] The award must attempt to quantify the value of the services performed. It would be futile to do so on the basis of estimating what the deceased would have willingly paid for the services, because although he was a wealthy man he lived frugally and neither offered nor paid the plaintiff anything for his services. [25] Nor do I consider it appropriate to make an award of the whole or most of the estate based on the evidence the deceased may have entertained the idea of benefitting the plaintiff in a will which was never made. No effect can be given to testamentary intentions not reduced to writing. That would defeat the requirements of the Wills Act. [26] The plaintiff, by devoting the time he did to the deceased's needs, at least in the final two years or so when the deceased became more dependant, may have foregone the alternative of earning income. Although that is not an alternative he pursued with any vigour or success when he lived with the deceased, the deceased has since become employed. I infer he was prepared to forego income to share the deceased's frugal lifestyle, so the decision was not entirely altruistic. On the other hand, the plaintiff has the capacity to earn $31,000 as his present employment indicates, and could have done so had he chosen not to spend time caring for the deceased. [27] Bearing in mind this notional foregone income, the benefit the plaintiff received by living all but rent free for years before and after the deceased's death and the duration of the deceased's period of reliance on the plaintiff, I award the plaintiff $40,000, plus costs on scale 3. "Mr. Justice E.R.A. Edwards"