Court awards $300,000 to long-lost sons - Mother Had "failed her children terribly"

Tomlyn v. Herchenson Estate, [2008] BCJ No. 475 

Ms. Herchenson was far from the model mother that many would hope to be.  She had three sons, Michael, George, and Francis.  Unfortunately, when the boys were quite young, all were apprehended by the superintendent of child welfare and made permanent wards.  None of the boys would see their mother again.  George was fortunate enough to be adopted, whereas Michael and Francis were placed in different foster homes.

The boys were left in challenging circumstances. The plaintiff, Michael, was placed involuntarily in an institution and sterilized.  He eventually left the institution after marrying.

Francis had also been left with a life of turmoil.  He was fortunate to avoid being placed in an institution, but grew up without parents, siblings, or an extended family.

George, seemingly had been dealt the better hand by being adopted, and went on to marry and have children of his own.  Sadly, for unknown reasons, he later took his life.

Within her will, their mother did recognize her obligation to her children even though she had no contact with them.  If they could be found, she wished to provide them with the residue of her estate in equal shares.

The court, in applying the law established in Clucas, discussed the following and ultimately awarded $175,000 to the plaintiff and $125,000 to his brother, Francis.  The court increased the initial amounts to the children, which would have only provided ~$76,000 each, as her estate had appreciated in value and she only left a relatively small portion for her lost children.  The court found that this amount was not sufficient to discharge her moral obligations and varied the will accordingly.

29   …The testatrix failed her children terribly. We do not know her circumstances or the reasons for that failure, but we are left with the fact that the care of the children was placed with the apparatus of the state. We know nothing of the testatrix's conduct while the children were in her care, but we do know the sad history that unfolded after they were apprehended by the Ministry. While such a challenging beginning does not invariably lead to a blighted life, that does seem to have been the lot of the children of the testatrix. The plaintiff was placed in foster care until he was placed involuntarily in an institution, where he was sterilized, and from which he escaped by marrying. He neither had the comfort and support of a mother or brothers but was left to his own slim resources to make his way in a competitive and sometimes cold and hostile world. He was even denied the joys and the comfort of children of his own. He now finds himself one of life's wounded.

30     His brother, Francis, did not suffer incarceration and involuntary sterilization but he, too, grew up without parents, without siblings and without an extended family - all of which may be expected to provide affection, support and encouragement, not only during childhood but throughout his life. He, too, finds himself much, much wounded by his beginnings.

31     There is little evidence concerning George other than that he was adopted, he later married and had children of his own, but for whatever reason or in whatever circumstances, he took his own life. It is perhaps forgivable to speculate that at the least his life was not improved by his beginnings.

32     By her Will, the testatrix recognized an obligation to make provision for her children if they could be found. She instructed her executor to make any and all reasonable efforts to locate them. She provided for them out of the residue of her estate, which they or their survivors were to share equally. There is no evidence that she made any effort to find her children during her lifetime, but she recognized, at the very least, a moral obligation to task her executor upon her death with finding her children, and she left them the residue of her estate. It is important, I think, to note that the first $270,000 of her net estate is payable in specific bequests that two trusts are established for her dog, Katie, and her brother-in-law, Raymond, of $65,000 with what remains falling into residue. Her estate was sworn for probate purposes in 2004 at approximately $496,000. The amount actually realized, largely as a result of the appreciated value of her real estate, was some $679,000, against which the executor estimated liabilities at $104,600 and expenses at $22,990. The result, by my calculations, is that there is approximately $550,000 available for distribution ($679,370 - $127,590). In giving effect to the Will, specific bequests of $270,000 must be deducted, as well as the sum of $50,000 for Raymond's Fund. There is no evidence of what will likely remain of that fund upon Raymond's death, and I therefore treat that as a deduction from the estate with a contingent residue resulting in the amount of approximately $230,000 for distribution amongst the children or surviving grandchildren of the testatrix. That amounts to approximately $76,000 each, and the narrow issue is whether that is sufficient to discharge the testatrix's moral obligation.

33     An amount of $230,000 represents less than one-half of the net distributable value of the estate, and approximately one-half of the net distributable value of the estate if Raymond's Fund is included in the residue. In addition to taking into account the amount of the net distributable estate, I must also consider those to whom the testatrix made specific bequests. I find, first of all, that she owed none of them a legal or a moral duty in the sense that that expression is used in Wills variation proceedings. Nevertheless, I must recognize the principle of testamentary autonomy and balance that principle against the moral duty that the testatrix owed her children.

34     I take into account that the testatrix made provision for her children or those that could be found out of residue, but there is no evidence that she had any more than a hope that they would be found. There is also no evidence that she knew of their progress through life or of their circumstances at the time that she made her Will or at the time of her death. In other words, I find that the testatrix did not know what became of her three sons (who at the time that she made her Will were between 59 and 61 years of age) or if each were living, nor did the testatrix know what her net distributable estate would amount to at her death. If it were to be found that the provision of $75,000 for each child was sufficient to discharge her moral responsibility, having regard to the size of her estate, and such obligations as she might have to others, that would be a matter of mere happenstance. The court then is very much in the position of objectively considering what a wise and judicious but not necessarily a loving parent in these circumstances would have done. I find that the testatrix failed to discharge her moral obligation to her two surviving sons. Balancing the principle of testamentary autonomy against that moral obligation, it is ordered that the plaintiff shall be entitled to $175,000 and the defendant, Francis Tomyn, shall be entitled to $125,000.