Discarded Child awarded $180,000 in Wills Variation action

McMain v. McMain Estate [2013] BCSC 891

It is a sad reality that children are neglected and estranged from their parents, often through no fault of their own.  This year, the decision of McMain v. McMain highlighted such a point with the story of a father and son an ocean apart. 

The Plaintiff was his father’s only child and was born into a troubled relationship.  The couple separated in 1969 and a custody battle followed.  His mother was granted custody and his father moved his life to Canada in 1972.  Neither the Plaintiff nor his mother heard from his father until he showed up unexpectedly in 1975 wishing to see the Plaintiff.  Another such unexpected visit followed in 1982.  During the recent visit, his father arranged for him to travel to Canada for a month.  The Plaintiff and his father got along well and kept in touch after the trip.  Although the two did maintain contact, suggestions for further visits by the Plaintiff were met with disinterest by his father. 

Years later, upon his father’s death, the Plaintiff learned that his cousin was the sole beneficiary under his father’s will and he was left out.  The will explicitly stated that the Plaintiff was not to inherit and explained “I have had limited contact and have not seen him for over 20 years”.  The Plaintiff brought a claim under the Wills Variation Act arguing that it did not make adequate provision for him. 

The court decided in favour of the Plaintiff, finding that his father had neglected his parental duty to his son.  His father had made limited effort and any estrangement was his father’s doing.  The story was curious as the cousin characterized his father as a “warm-hearted family man and beloved family member”.  Nevertheless, the effective abandonment from infancy lead to establishment of a moral obligation to the Plaintiff, amounting to an award of $180,000 from the estate valued at $330,000.  His father’s statements did not amount to valid or rational reasons for the disinheritance. 

The court provided the following discussion on the application of the law to the facts:


82     However, there was one aspect of his life in which the testator came up badly short, and that was in the discharge of his parental obligations to his son. Whatever the strengths of the testator's character, and I am prepared to accept that there were many, he had this one flaw: having brought the plaintiff into the world, and having fought assertively to gain custody of him, after his departure from England, he gave him short shrift and ignored and neglected him for most of his life.

83     Apart from a couple of short visits in England, and with the notable exception of the trip to Canada in 1983, during his lifetime the testator provided the plaintiff with precious little material or emotional support. He occasionally raised the plaintiff's hopes of establishing a proper relationship him, and I am satisfied that this is precisely what the plaintiff wanted, but then disappointed him by reverting into himself and allowing lengthy periods to pass without any communication.

84     No one will ever know for sure what motivated, or failed to motivate, the testator. His attitude towards his son is most peculiar, especially when it is considered that, during their brief and intermittent encounters with each other, it appears that the testator and plaintiff got on well.

85     I have no idea why, after the successful 1983 visit, the silence between father and son should have resumed, or why the testator would not agree to have the plaintiff come and stay with him for a while in 1988. It is a mystery to me why the testator travelled to England in 1989 for his sister's funeral without looking up the plaintiff. His failure to make the effort to meet the plaintiff in Vancouver in 1995 strikes me as most odd as well, and the excuses given, that he had slept in and that, in essence, the visit would be too brief to merit the expense of making the journey, strike me as being petty, self-centred and more than a little sad.

86     The testator seems to have been tightly connected to his sisters and their offspring. He was married to his second wife Betta for many years. He was a caring and devoted dog owner. I conclude that he was capable of forming strong bonds with loved ones, and of commendable constancy in his relationships with others, human and canine alike. But for some reason that I simply cannot fathom he rejected and neglected his son.

87     I conclude that the testator turned his back on the plaintiff from an early age. Such efforts as he made over the years to care for his son or provide him with material or emotional support were miniscule. Most of the effort to keep any relationship alive was made by the plaintiff. Apart from a couple of impromptu appearances on the plaintiff's doorstep in England and the 1983 Canadian visit, the testator's life-long indifference to his only son was almost total.

88     In my view, in all the circumstance of this case, the plaintiff has a strong moral claim to a share of the testator's estate. This claim is undiminished by the plaintiff's decision, after the failed 1995 Vancouver reunion, to abandon his attempts to get closer to his father. The plaintiff had come to the conclusion that his father did not love him and wanted nothing to do with him. I do not blame him. The testator did almost nothing to lead him to think otherwise. It was the only rational conclusion for him to have drawn from a lifetime of experience.

89     Although every case must be decided on its peculiar facts, and the facts at bar differ from those in Gray v. Nantel, supra, nevertheless I would respectfully adopt the spirit of the following observation of Donald J.A. as follows at para. 17 of the judgment:

    • [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.

90     Here, too, the testator had one last opportunity to behave after the manner of a judicious parent and recognize his moral obligation to his son by means of his will. He failed in this.

91     In my estimation, as in Gray, this case involves the testator's unilateral withdrawal from the parent child relationship. I appreciate that there was occasional contact between the plaintiff and testator, but my overall finding is that the plaintiff wanted a relationship, and the testator, for whatever reason, could not be bothered.

92     In my judgment, the testator cannot resort to his indifference to his parental responsibilities in life as a justification for avoiding his moral obligations to his only son in death.

93     Yet this is precisely what the testator attempted to do in para. 5 of the will. In my view the statement made in this paragraph gives neither valid nor rational grounds for disinheriting the plaintiff. The words set out in para. 5 are superficially true, but they portray only a fraction of the whole truth.

94     Section 5 of the Act enjoins me, in evaluating the weight to be given to para. 5 of the will, to have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of what was said. I am not limited to the testator's cryptic and incomplete narrative of his relationship with his son. I must look at the whole picture.

95     Having done so, I am strongly persuaded that this is a case in which the testator more or less abandoned his son from an early age and had a strong moral obligation to attempt to make up for his omissions in his will.

96     Accordingly, the will be varied to make adequate, just and equitable provision for the plaintiff, while interfering as little as possible with the testator's clearly expressed autonomy and intentions. In my view, the plaintiff's position that the entire net estate should be transferred to him is over-reaching, would entirely obviate testamentary autonomy, and is not a fit remedy to the circumstances.