Broken promise to "look after" wife resulted in her receiving title to family home

Orr v. Orr, [2013] B.C.J. No. 233        

The wife of the deceased had only been left “an interest akin to a life interest in the matrimonial home, where she could live rent-free but must pay tax and utilities and maintain the property from her own resources.”  If she no longer occupied it as her residence, the home was to pass to their son, Richard, as he had done much work to the home, knew how it operated, and was in the best position to care for it.  The wife felt that if she were no longer able to live independently, she would not be able to afford assisted living on the resources she had been left.  She wished for the will to be varied to place the home in her name.  

In granting her the title to the family home, the court likened the case to Tataryn itself and Hall v. Korejwo.  

29     As to the legal obligations of a testator, an indication of their content lies in the obligations the law would impose during the testator's life. In that regard, reference may be had to the various statutory and common law obligations and entitlements that spouses have to one another. The precise dimensions of the moral obligation are somewhat less clear, but they go beyond a testator's legal obligations. As Neilson J.A. put it in Hall v. Korejwo, 2011 BCCA 355, a testator's legal obligations are the starting point, a point which may be "amplified" by a substantial moral obligation (at para. 47). The nature and strength of the moral claims will vary according to the circumstances. Among the relevant circumstances will be the testator's "legitimate concerns", which may extend to such things as the reasons for making or not making a particular bequest. Yvonne's claim is rooted in the notion that her father owed her a moral obligation to provide for her future because of what the future likely holds for her.

30     Finally, in terms of a hierarchy within which to address these competing interests and claims, McLachlin J. held that testamentary autonomy must give way to the "adequate, just and equitable" provision of a spouse or children. As between competing legal and moral obligations of the testator, the former will generally prevail over the latter. The moral obligations are to be given weight according to their relative strengths and weaknesses taking into account the changes to the claims which arise from the fact of the testator's death.

31     Thus, Tataryn v. Tataryn Estate mandates a two-stage analysis. At the first stage, the issue is whether the Will makes "adequate, just and equitable" provision for the applicant spouse or child. If so, that is the end of the matter. If not, the second stage requires the court to consider what would be an "adequate, just and equitable" provision.

32     The facts in the two cases noted above are sufficiently similar to those in the matter at hand that some guidance can be taken from their results. In Tataryn v. Tataryn Estate, the deceased and his spouse had been married for 43 years. They had two children. The deceased held all of their assets in his name. His estate was worth just over $300,000 and consisted of his home, a rental property and approximately $125,000 in cash. Mrs. Tataryn had about $125,000 in her name. He wished to disinherit one of his sons and explained why in a clause in his Will. Because he was concerned that if he left his estate to his wife she would benefit the son he wished to disinherit, he left his entire estate to his favoured son, save for granting his spouse a life estate in the family home and making her a beneficiary of a discretionary trust of the income from the residue of his estate.

33     Both Mrs. Tataryn and the disinherited son applied under the Wills Variation Act. The trial judge varied the Will granting Mrs. Tataryn a life estate in the rental property (thus providing her with an assured income). He directed an immediate gift of $10,000 to each son and ordered that on Mrs. Tataryn's death, the residue of the estate be divided two-thirds to the favoured son and one-third to the other son. The Court of Appeal made minor adjustments to this order.

34     The Supreme Court of Canada, applying the principles set out above, gave Mrs. Tataryn title to the family home; they also gave her a life interest in the rental property and the entire residue of the estate, save for immediate gifts of $10,000 to each of the sons. Upon the expiration of Mrs. Tataryn's life interest in the rental property, that property was to pass to the sons in the same proportions as the trial judge sought to divide the residue.

35     Counsel for Mrs. Orr points to Hall v. Korejwo in support of his position. In that case, the claimant common law spouse had been in a relationship with the deceased for about four years when he died. He was 20 years her senior. The deceased had two sons, from whom he had been estranged at various points during his life. By his Will, he purported to leave $10,000 to one of his sons, nothing to the other (because he had gifted him $93,000 prior to his death), and the residue to his common law spouse.

36     The Hall estate was worth $438,000. The trial judge, on the application of one of his sons, varied the Will to provide that the common law spouse's interest was a life interest only and that, upon her death, the residue was to go to the applicant son. Mr. Hall's son was disabled and living in subsidized housing. He was unable to work and had assets totalling $90,000. The common law spouse had a modest pension income and few assets.

37     The Court of Appeal allowed the appeal and increased the gift to the son from the $20,000 the trial judge thought proper to $60,000, and left the entire residue to the common law spouse. Thus, the common law spouse received the bulk of the estate. Significant to her moral, if not legal, claim was the fact that Mr. Hall had promised to "look after" her both when she moved in with him and later when he prepared his first Will. She had cared for him during his terminal illness.

38     With the foregoing in mind, I turn to Mrs. Orr's claim. Under the Will, she receives everything except the house. In addition, she has the right to live in the house as long as she is able to. As to Mrs. Orr's legal claim, like Mrs. Tataryn, while Mr. Orr's legal obligation to her had not crystallized by the time he died, the obligation existed. Had they separated, there is little doubt she would have shared in all the assets of the estate and been entitled to reasonable support. Like Mrs. Tataryn, she is entitled to at least that much upon her husband's death. Also like Mrs. Tataryn, Mr. Orr owed Mrs. Orr a moral obligation. That obligation was to provide for her during the years remaining to her. While there is no direct evidence on the point, I infer that Mr. and Mrs. Orr regarded their accumulated assets as there for their remaining years.

39     The distinction between the circumstances in this case and those in Tataryn Estate is that Mrs. Orr receives virtually all of her husband's estate. The only thing she does not receive is a fee simple interest in the family home. The difficulty is that it is that fee simple interest which has the only immediate ability to generate an income, and Mrs. Orr may well need additional income in the reasonably near future. Assisted living establishments in Vernon and Kelowna which would provide Mrs. Orr with a standard of living "commensurate with the standard of living she had prior to the death of her husband" (from Tataryn Estate at para. 7) all cost about $3,000 per month in addition to other lesser levies. Her income will not cover the cost of such accommodation never mind provide her with any additional discretionary funds. The other property may not sell for years. Mrs. Orr's need may well crystallize long before such a sale can be arranged, assuming the sale is provident.

40     Richard opposes his mother's application, not because he thinks his mother's claim is unworthy, but rather because he feels obliged to ensure that his father's wishes are honoured if at all possible. Richard has no legal claim to his father's estate. His claim is moral and rests on the matters addressed by Mr. Orr in the memorandum he left with his Will. He implied there, and expressed to Richard during his life, that he wanted the family home to remain in the family. Richard, living next door and being familiar with the various things that need to be done to maintain the place, was the obvious choice. Further, Richard had assisted his parents over the past several years and that, too, is a basis of his moral claim. It does not ground a legal claim because Richard himself has deposed that he helped his parents without any expectation of reward, whether during his father's life or after.

41     I am satisfied that having regard to Mrs. Orr's legal and moral claims on the estate of her husband, including the fact that she will have, sooner rather than later, a need for additional income which the property she otherwise stands to inherit cannot be expected to generate, that the Will does not make "adequate, just and equitable" provision for her.


44     I consider that it is appropriate to vary the Will as follows:

(i) Mrs. Orr is to receive title to the family home.

(ii) The residue of the estate is to be divided 50 percent to Mrs. Orr, 25 percent to Yvonne, and 25 percent to Richard.

45     As to costs, Mrs. Orr is seeking special costs from Richard and Bruce. I am not persuaded that is a proper outcome. Richard defended this claim in a responsible manner, that is to say, a manner which allowed the issue to be litigated efficiently. He did so for the reasons I noted above. Those reasons are entirely proper. All parties will have their costs from the estate as special costs.