[1]         The last will and testament (“the will”), of the parties’ last surviving parent Simone Marguerite Delahaye (“the testatrix”), bequeathed 80% of her $650,000 estate to her defendant son and executor, Bernard Delahaye (“Bernard”), age 54, and 20% to her plaintiff daughter, Marcelle Ryan (“Marcelle”), age 60.  The reasons for the unequal distribution were noted in para. 11 of the will which provided:

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.

[2]         Marcelle makes application pursuant to the s. 2 of the Wills Variation Act, R.S.B.C., 1996, c. 490 (“WVA”), for an equal distribution of the estate between herself and her brother.  Section 2 of the WVA 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 … children, the court may, in its discretion, in an action by or on behalf of the … 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 … children.

[3]         In Kelly v. Baker (1996), 82 B.C.A.C. 150 at para. 58, Finch J.A. (now C.J.B.C.) summarized the test outlined in s. 2 of the WVA:

In deciding a claim under s. 2(1) of the Act, the task of the court is to decide whether, at the date of the testator’s death, her will was consistent with the discharge by a good parent of her duties to her family:  Landy v. Landy Estate (1991), 60 B.C.L.R. (2d) 282 (C.A.), Morris v. Morris (1982), 41 B.C.L.R. 239(C.A.), and Lukie v. Helgason (1976), 1 B.C.L.R. 1 (C.A.).  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.

[4]         The parties agree the testatrix had no legal obligation to provide for either of her children as both were financially independent adults at the time of her death.  However, the jurisprudence over the past 70 years has confirmed a moral obligation by a parent to make some provision for his or her children unless that duty is displaced by special circumstances.

[5]         Marcelle submits that the reasons noted for the unequal distribution in para. 11 of the will were untrue and therefore were not valid and rational.  As a consequence, she submits, the testatrix did not discharge her moral obligation, as a good or judicious parent, to provide for her daughter.

[6]         Bernard submits that in making some provision for Marcelle, the testatrix met her moral obligation to her daughter and that the court should respect her testamentary autonomy in the distribution of her estate.

[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.

BACKGROUND FACTS

[8]         Marcel (“the father”) and Simone (“the mother”) Delahaye (“the parents”) were born in France.  They married and had two children, Marcelle, born May 13, 1943, and Bernard, born September 11, 1949.

[9]         The father was described by both Marcelle and Bernard as a typical “European” father.  He was considered the head of the household and presented himself as an authoritarian figure.  He was very strict, had a temper, and would yell a lot.  He was also the disciplinarian in the family.  He regularly made demands of his children which he expected to be obeyed.  He managed the finances.  The mother assumed a more subservient role to that of her husband and would generally follow his instructions.  The family did not celebrate Christmas or birthdays.  There appeared to be few joyous occasions in the children’s lives.

[10]    At age 3 months, the parents gave the care and custody of Marcelle to the father’s mother, Hermine Delahaye (“the grandmother”).  Except for a brief period between 1951 and 1952, Marcelle was raised by, lived with, and was supported by her grandmother until her grandmother’s death from cancer on January 28, 1966.

[11]    Marcelle reported that she was given to her grandmother because her mother wanted to return to work and would have no time to care for her.  More significantly, however, because of its emotional scarring, she said her parents told her that they were unhappy that she was not the son they had hoped for.  According to Marcelle, her parents had expected a male child and had only considered the father’s name “Marcel” for their firstborn.  When that child turned out to be a daughter, they were forced to improvise by feminizing the chosen name to “Marcelle”.

[12]    Bernard was born six years later.  The mother continued to work on and off after his birth.  However, Bernard was raised by, lived with for the most part, and was supported by the parents until he married at age 27.  Marcelle described her brother as her father’s “pet”.  Not surprising, a close bond never developed between the siblings.

[13]    In 1951, the grandmother immigrated to Canada and settled on a nine-acre parcel of property in Surrey, B.C. (“the Newton Road property”).  Marcelle remained in France, returning to live with her parents and brother until 1952, when the family immigrated to Canada and settled with the grandmother on the Newton Road property.

[14]    A creek ran through the Newton Road property separating the two acres on which the house was situated from the seven acre field.  The home was a make-shift house that had been converted from a double garage.  It consisted of two bedrooms, a partial living room, and a bathtub, sink and toilet.  It had no heating or insulation, water was heated on a wood stove, and the floors were made of cement.

[15]    The living arrangements for the family of five were taxing.  The house was small, and the mother and the grandmother did not get along.  After about a year and a half, the parents purchased a five-acre parcel of land in Cloverdale (“the Cloverdale property”), about 13 miles from the Newton Road property.  Bernard moved to the Cloverdale property with the parents.  Marcelle remained with the grandmother.

[16]    The original house on the Cloverdale property was even more basic than the house on the Newton Road property.  It consisted of a one-room tar shack with no indoor plumbing.  A well had to be dug.  A temporary cardboard divide was erected and the family slept on mattresses placed on planks.  When he could afford it, the father built a small two-bedroom house behind the shack, but it was many years before the family enjoyed indoor plumbing.

[17]    Life was frugal for both families.  The grandmother supported herself and Marcelle by raising sheep, goats, and cattle.  Marcelle helped with the care of the livestock.  Although the father assisted in certain repairs and maintenance to the grandmother’s property, he made no financial contribution to Marcelle’s support.  Marcelle recalled arguments between her grandmother and father over her father’s lack of support.  She said that she and her grandmother almost starved and that her grandmother was always broke.  During her childhood there was no money for an allowance, extra-curricular activities or holidays.

[18]    Bernard was also raised in a household where money was sparse.  His parents had to learn English and so it was some time before his father obtained steady work as a mechanic.  His mother picked berries at a nearby farm.  Eventually his father set up a machine shop on the Cloverdale property and worked out of his home.  As the father’s income improved, so did the conditions at home.  Bernard assisted his father in clearing the land, building the house behind the shack, and baling the hay.  He also helped his father in the machine shop.  He said his work was never done.

[19]    The father would visit Marcelle and her grandmother on a weekly basis.  Marcelle recalled that he would lay down the law and tell her what she could and could not do.  She said that on occasion he would punish her by the use of a cat-o-nine whip.  Her mother rarely visited because she did not get along with the grandmother.

[20]    Periodically, Marcelle attended at the Cloverdale property to help with the chores.  There, she would pick strawberries and raspberries, cut the grass and weed the garden, butcher the rabbits and clean their cages, tend the pigs, clean the floors in the house, and baby-sit her brother.  As she grew older, however, her primary responsibility became the care of her ailing grandmother.

[21]    On September 1, 1960, the grandmother transferred ownership of the seven-acre parcel on the Newton Road property jointly to the parents.  No money was exchanged.  The grandmother retained the two-acre parcel on which the house was situated.  On October 1, 1960, she signed her last will and testament in which she bequeathed all of her estate, both real and personal, to the father.

[22]     In 1962, Marcelle graduated from high school.  She said her father prohibited her from attending the ceremony but eventually relented.  He did not, however, permit her to attend the church dinner that followed the ceremony, insisting that she had to return home to care for her grandmother.

[23]    Following graduation, the father arranged an office job for Marcelle, but she said she could not take it because she had no means of getting there.  She asked her father if he would give her a loan so that she could attend nursing school but she said he refused.  He told her that girls did not need an education, that her husband would support her, and that in any event he was saving for Bernard’s education.  She said he also told her that she had to take care of her grandmother as he could not afford to hire a caregiver.

[24]    Marcelle did not receive any further training after high school.  She obtained sporadic work at unskilled jobs that were largely related to farm work.  She gave her earnings to her grandmother for her support and continued to care for her grandmother until her death.

[25]    On December 2, 1965, her grandmother transferred title to the two-acre parcel on the Newton Road property into the joint names of herself and Marcelle.  Marcelle said her grandmother told her that the transfer was in payment for Marcelle’s continued care of her grandmother over the years which had prevented Marcelle from having an independent life.  The grandmother died on January 28, 1966 and by the right of survivorship title to the two-acre parcel went to Marcelle.

[26]    The parents were extremely upset upon learning of the transfer.  After the grandmother’s death, the father demanded that Marcelle sign the two-acre parcel over to him.  He told her that she had to move in with them so that he could rent out the grandmother’s house.  He also told her that she would have to pay them room and board and help with the care of the livestock.  When Marcelle refused, she said her father became furious with her.  She said he eventually settled down, but they never again discussed her ownership of the property which he always viewed as being rightfully his.  Bernard, however, acknowledged that Marcelle had earned the gift from her grandmother by taking care of her until she died.

[27]    As a result of the inter vivos property transfers, the grandmother’s estate was negligible.  The only asset was an old truck which devolved to the father and which the father never gave to Marcelle.

[28]    Marcelle continued to live on the Newton Road property after her grandmother’s death.  She said she regularly visited her parents at the Cloverdale property between 1966 and 1969. Bernard did not recall that she was over very often.

[29]    On February 1, 1969, Marcelle married.  She and her husband continued to live on the Newton Road property until 1971 when they sold her two-acre parcel to a developer for $20,400.  At the same time, her parents also sold their seven-acre parcel to the developer for $70,000.

[30]    Marcelle and her husband purchased a 50-acre farm in Agassiz for $50,000 (“the Agassiz property”).  The purchase price was raised in part, from the sale proceeds of the two-acre Newton Road parcel, and the balance by way of mortgage financing.

[31]     Marcelle did not work outside the home after her marriage.  She and her husband had four children.  Initially, they were on welfare but in 1972, Marcelle and her husband were convicted of welfare fraud and Marcelle served a three month custodial sentence.

[32]    Between 1972 and 1977, they operated a goat dairy business.  During this period, Marcelle would drop in and see her parents about three times a week when she went to Vancouver on business.  She said she had a good relationship with her parents.  The business ultimately failed and the family again went on welfare.

[33]    After graduation, Bernard continued to live at home with the parents and attended B.C.I.T. where he successfully completed a course to become an electrician.  The father paid for his schooling.  In 1970, Bernard graduated and moved to the interior for about two and a half years in order to complete his apprenticeship.  Thereafter, he returned to live with his parents and obtained steady work.

[34]    In 1976, Bernard married and moved out of the parents’ home.  He said his mother was not keen on the marriage and created a fuss.  Despite a resilient effort, Bernard’s wife was never able to gain the affection of her mother-in-law and the two had little to do with one another.

[35]    Upon Bernard’s marriage, the father bought the couple a house about a mile and a half from the Cloverdale property.  He purchased the home for $35,000 and gave the couple an interest-free loan of $20,000 which was secured by way of a collateral mortgage against the title to the property.

[36]    The house was not the couple’s choice of residence.  The building was old, the foundation rotten, and the septic tank was on the verge of collapse.  However, Bernard felt obliged to accept his father’s gift and the couple lived there until after the birth of their first child in 1978, when they purchased their second home.  In 1980, they had a son.  The couple have since moved into a third home which they estimate has a value of about $370,800.

[37]    The $20,000 loan from the father was never repaid and payment was never requested.  However, it continued to be secured by way of a collateral mortgage against the title of the various houses owned by Bernard and his wife.  After the mother’s death, Bernard, as executor, discharged the mortgage but listed it as an asset of the mother’s estate at $22,800.

[38]    After his marriage, Bernard continued to meet his parents’ ongoing demands.  Most weekends he helped his father with chores at the Cloverdale property.  He also assisted his father in a side business that involved the repair and sale of old vegetable boxes they collected from grocery stores.

[39]    Shortly after the birth of his son, the parents insisted that Bernard take relatives from France on a tour of the interior.  His wife was left with the care of a newborn and toddler while Bernard acted as guide to the visiting relatives.

[40]    Bernard said that he very rarely declined his parents’ requests.  Their demands for assistance were frequent and continued until their respective deaths.  They caused considerable emotional strain in Bernard’s marriage as his family often had to sacrifice or delay plans so that Bernard could attend to his parents’ needs.

[41]    In 1975, Bernard obtained employment with the Surrey School Board.  He has maintained that employment for the past 28 years.  His current position is that of electrical foreman and he has responsibility for 120 buildings.  He receives an annual salary of about $60,000 and has a vested pension with contributions of about $100,000.  His wife works part-time as a bookkeeper and earns about $12,000 per annum.  In addition to their home, the couple has personal assets of about $28,000 and credit card debts of about $20,000.

[42]    In about 1982 the father suffered a stroke.  He did not work again.  During his hospitalization, Bernard would take his mother to visit his father during the week.  Marcelle would take her on weekends.  After his stroke, the father’s physical abilities were limited and Bernard’s workload increased when he assumed all the farm chores on the Cloverdale property.

[43]    The parents eventually realized they would have to sell the Cloverdale property although the mother remained unhappy about having to move.  Bernard assisted his father in readying the property for sale by taking the scrap material from the machine shop to various dealers over the course of a year.

[44]    After the sale of the Cloverdale property, the parents purchased a home in White Rock in about 1983.  Bernard and his wife helped the parents pack and move.  Both Marcelle and Bernard visited the parents in the White Rock home.  However, the mother did not adjust to the new home and it was eventually sold.

[45]    The parents purchased another home in Langley City (“the Langley City property”) where they grew a vegetable garden.  Both Bernard and Marcelle assisted the parents with the latter move.

[46]    In 1985, the parents acquired a motor home.  They travelled around in the motor home and frequently visited Marcelle at the Agassiz property.  They would park the motor home and stay with Marcelle for varying periods of time.  Marcelle produced numerous family pictures of her parents with Marcelle and her children during the years the grandchildren were growing up.  In the parents’ absences, Bernard took care of the Langley City property after work and on weekends.

[47]    On July 25, 1985, the parents signed mutual wills.  Each bequeathed their estate to the other with a gift over to their children, 80% to Bernard and 20% to Marcelle.  The mutual wills both contained the above-noted para. 11 in which the parents outlined their reasons for the unequal distribution.

[48]    In 1986, the mother had a nervous breakdown.  Marcelle arranged for her to be hospitalized in Chilliwack where the mother remained for about two months.  During that time the father stayed with Marcelle at the Agassiz property.  Marcelle would drive him to the hospital two to three times a week to visit the mother.  She said she never left him alone because of his earlier stroke.  On the mother’s discharge from hospital, the parents resided with Marcelle and her family for about six months.

[49]    Marcelle continued to see the parents on a regular basis.  She would take her mother shopping because her mother did not drive.  She also attended to her personal care when her mother’s health deteriorated.  As her own health deteriorated, Marcelle’s visits declined.  However, she said she continued to be on good terms with her parents until their respective deaths.

[50]    On April 13, 1995, Marcelle’s husband died.

[51]    The father had suffered a series of additional small strokes after the first.  In 1992, he was hospitalized in Langley after his mental state deteriorated.  Bernard visited him regularly at the hospital, would bring him his favourite foods, and generally took care of his needs.  Occasionally, he would take the mother for a visit and would attend to her needs when she called him.  Marcelle also visited her father at the hospital.  As well, the mother would frequently stay with Marcelle for varying periods of time.

[52]    Despite being siblings, Marcelle and Bernard had little contact with one another and essentially led separate lives.

[53]    In 1995, the mother had a fall.  With the deterioration of her health, it became necessary to sell the Langley City property and downsize her accommodation.  Bernard arranged for the sale of the Langley City property, helped her dig up the vegetable garden, and assisted her with the purchase of a condominium in Langley City.  Marcelle helped her pack, also assisted her in digging up the vegetable garden, and canned and froze the produce.  Both Marcelle and Bernard sold items from the Langley City property at a flea market and helped the mother with the move.

[54]    The father died on December 1, 1995.  Following his death, Marcelle said the mother expressed concern to her about the unequal distribution in the will but did nothing about changing it.

[55]    The mother was never content after the Langley City property was sold.  Her mental health deteriorated.  Over the next few years she bought and sold three more condominiums.  Bernard assisted her with each of the moves.  It was a very demanding time for him and his family.  Marcelle continued to see her mother; however, her visits became less frequent with the mother’s various moves.

[56]    On April 13, 1998, the mother died.  On June 18, 1998, the will was probated.  Shortly thereafter Marcelle made application to vary the will.

[57]    In May, 2002, Marcelle sold the Agassiz property and realized net proceeds of about $284,500.  She used $158,500 of the proceeds to purchase her present home in Abbotsford to which she owns clear title.  She said her husband, in 1985, transferred title to the Agassiz property to her youngest son, whose name is similar to her husband’s, in order to avoid creditors.  However, the transfer document clearly identifies her husband and describes him as “retired”.  She said her son acquired a half interest in the Agassiz property because he paid the mortgage and other expenses related to the property.  However, he also lived with her and it is unclear if he paid any room and board.  For these reasons, Marcelle said she was only entitled to one-half of the net proceeds and had to borrow $30,000 from her son in order to complete the purchase of the Abbotsford property.

[58]    Her explanation regarding the transfer of title to the Agassiz property was very confusing and not credible.  While the reasons for the transfers are unclear, I am satisfied that the net proceeds of sale of the Agassiz property, and as well the ownership of the Abbotsford property, belong to Marcelle.

[59]    Marcelle went off welfare in June, 2002.  Since then, she has been supported by her youngest son who lives with her along with her two daughters and three grandchildren.

[60]    Marcelle is medically disabled at this time.  She suffers from chronic pain caused by osteoarthritis in her lower back, which she injured in a motor vehicle accident in 1980.  The pain has gradually worsened over time and she now experiences pain when walking, standing or sitting.  She also has osteoarthritis in her left knee and suffers from asthma which causes shortness of breath.  Both conditions reduce her mobility.  She requires the assistance of her daughter for dressing and is no longer able to do much of her housework.

[61]    In 1996, Marcelle qualified for a disability allowance.  She was classified at a Disability Level 1.  As of July 1, 2003, that classification has increased to a Disability Level 2, which will give her a monthly allowance of about $850.

DISCUSSION

[62]    The testamentary duty of a parent toward a child was described in Walker v. McKermott (1931), S.C.R. 94 at 96:

What constitutes “proper maintenance and support” is a question to be determined with reference to a variety of circumstances.  It cannot be limited to the bare necessities of existence.  For the purpose of arriving at a conclusion, the court of whom devolves the responsibility of giving effect to the statute, would naturally proceed from the point of view of the judicious father of a family seeking to discharge … his parental duty; and would of course (looking at the matter from that point of view), consider the situation of the child, … and the standard of living to which, having regard to this and the other circumstances, reference ought to be had.  If the court comes to the decision that adequate provision has not been made, then the court must consider what provision would be not only adequate, but just and equitable also; and in exercising its judgment upon this, the pecuniary magnitude of the estate, and the situation of others having claims upon the testator, must be taken into account.

[63]    What constitutes an “adequate” testamentary provision for a child was expanded upon in Tataryn v. Tataryn, [1994] 2 S.C.R. 807, where the court included both a legal and moral obligation by a testatrix toward her children.  The moral obligation was described by McLachlin J. (now C.J.C.) at 814:

… most people would agree that an adult dependent child is 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 permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made.

[64]    In reviewing a testamentary distribution to an independent adult child, the court must balance the competing claims of testamentary autonomy with a testator’s moral obligation to provide what is adequate, just and equitable.  As McLachlin J. noted in Tataryn at 815:

As between moral claims, some may be stronger than others.  It falls to the court to weigh the strength of each claim and assign to each its proper priority. …

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

[65]    The standard to be applied in assessing a moral claim was also commented upon in Tataryn.  At pages 811-12, McLachlin J. stated:

The language of the Act confers a broad discretion on the court.  The generosity of the language suggests that the legislature was attempting to craft a formula which would permit the courts to make orders which are just in the specific circumstances and in light of contemporary standards.  This, combined with the rule that a statute is always speaking, … means that the Act must be read in light of modern values and expectations.  What was thought to be adequate, just and equitable in the 1920’s may be quite different from what is considered adequate, just and equitable in the 1990’s.  This narrows the inquiry.  Courts are not necessarily bound by the view and awards made in earlier times.  The search is for contemporary justice.

[66]    Contemporary justice was applied in Gray v. Gray Estate (2002), 98 B.C.L.R. (3d) 389 (C.A.).  In that case, the testator disentitled one of his sons and left his estate to two other sons and a half-sibling.  He gave no reasons for disinheriting his one son.  On appeal, the court found that the lack of a relationship between the disentitled son and the testator was the fault of the testator who unilaterally withdrew from the relationship.  Donald J.A. noted at para. 17:

I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claim to a share in his father’s estate by abandoning any further effort to establish a relationship.  The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders.  The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.

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

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

[69]    In this case, there were three express reasons given for the testatrix’s unequal distribution:

(a)  Bernard was of great assistance to the parents over the years;

(b)  Marcelle seldom visited the parents on her own initiative and only did so at their request;

(c)  The father gave Marcelle the grandmother’s estate which had been bequeathed to him.

[70]    The second and third reasons were not accurate and therefore were not valid and rational at the time of the testatrix’s death.

[71]    The second reason was inaccurate because Marcelle had both worked and visited with her parents at the Cloverdale property as she was growing up.  Until she was able to drive, it would not have been possible or reasonable for her to have found her own way the 13 miles from the Newton Road property to the Cloverdale property.  Furthermore, her mother would not visit her at the Newton Road property because she and the grandmother did not get along.  In addition, it was at her parents’ insistence, and for their benefit, that she assumed the care of her ailing grandmother, which prevented her from having the freedom associated with an independent life.

[72]    After her grandmother’s death, in her adult years, Marcelle did spend a significant amount of time seeing and taking care of each of her parents, especially after their health started to deteriorate.  She visited them in the hospital, took care of them in her home, and assisted Bernard with a number of their moves.  Despite their apparent rejection of her as a child and their anger over the grandmother’s gift to her of the two-acre Newton Road property, she was never estranged from either of them and continued to have a relationship with both of them until their respective deaths.

[73]    The third reason noted in the will was also inaccurate.  It assumed that the father was entitled to the grandmother’s Newton Road property when the grandmother was free to dispose of her property during her life in any manner she saw fit, just as she had earlier disposed of the seven-acre parcel to the parents as a gift.  It was reasonable for the grandmother to want to compensate Marcelle for the care she had given to her grandmother, with a gift of the two-acre parcel.  Because of the inter vivos property transfers, there were no significant assets in the grandmother’s estate at the time of her death.  The only asset, an old truck, devolved to the father under the grandmother’s will and he did not give that asset to Marcelle.

[74]    The first reason noted in the will was accurate.  However, it ignored the considerable assistance that Marcelle, as well as Bernard, had given to the parents during their lives.

[75]    Bernard was clearly devoted to his parents and greatly assisted both the father and mother during their lives.  He made himself available at their beck and call, at the expense of his own family.  Before the father’s stroke, he assisted with the farm chores at the Cloverdale property.  After the father’s stroke, and before the sale of the Cloverdale property, he assumed responsibility for the upkeep of the property.  He visited his father in the hospital, took care of his needs, and helped his mother in her numerous moves.

[76]    However, Marcelle, as well, assisted her parents.  She received no financial support from the parents as she was growing up.  She had to care for the grandmother in order to save the parents the cost of hiring a caregiver.  She also worked on the Cloverdale property.  As an adult, both parents were frequent visitors at her home and she took care of them individually during their times of need.  She also assisted Bernard in many of their moves.  She was never estranged from them and continued to see them until their respective deaths.

[77]    During their lives, the parents provided some compensation to Bernard for his devotion.  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.  That gift was in some sense comparable to the gift Marcelle received from the grandmother.  The gifts allowed each of the children to acquire homes for their families.

[78]    In all of the circumstances, I am satisfied that both Bernard and Marcelle were of great assistance to the parents during their lives and that it is not possible to quantify each of their contributions.  In my view, both were caring and helpful children to the parents in their own ways.

[79]    Like the testator in the Gray Estate, this was the testatrix’s last opportunity to do right by her daughter, when she had given her virtually nothing in an emotional or material way during her life.  Marcelle did not have the same opportunities as Bernard as a child.  Her life has been significantly different from Bernard’s, in large part because of that deficiency.  Today, her lack of skills and deteriorating health make her unemployable.  Given the size of this estate, I am of the view that Marcelle was not adequately provided for and that she, like Bernard, is entitled to share in the financial rewards the parents acquired during their lives.

[80]    In the result, I am of the view that the testatrix’s unequal distribution of her estate does not provide for the proper maintenance and support of Marcelle and that an adequate, just and equitable distribution would give Marcelle an equal share of the residue of the estate.

[81]    Costs are awarded at scale 3.

[82]    The parties have liberty to apply for an accounting if no agreement is reached.

“D.M. Smith, J.”
The Honourable Madam Justice D.M. Smith