Daughter Challenges Will – Turns $1 into $160,000.

Todd v. MacDonald Estate, 2009 BCSC 677

The plaintiff brought an action for variation of her mother’s will as she had only been left with $1 of her mother’s estate which had a value close to $400,000.  The will mentioned that the reason for the disinheritance was that there was no favourable communication between mother and daughter for ~20 years.  The entire estate was to go to the plaintiff’s half-brother and the court tackled the issue of the mother’s moral obligation to the daughter. 

The plaintiff had a strained relationship with her mother.  This strain may have originated when she informed her mother that her mother’s estranged partner had sexually touched her as a child.  The rift was furthered by the plaintiff’s pregnancy at age 15 and her refusal to take her mother’s advice to give the child up for adoption.  She married the father of her child and although her mother had given her permission to do so, she did not invite her to the wedding. 

The plaintiff kept in touch with her mother and visited her several times a year.  After moving to Saskatchewan and later remarrying, the plaintiff continued to speak with her mother 3-4 times a year and visited her at least once a year. 

The relationship between mother and daughter came to a halt and was much worse after an argument over the phone regarding the mother placing the grandmother in an old-age home.  The plaintiff did not see her mother after this phone call and they only ever had a handful of phone calls per year before her mother’s death in 2007.  The plaintiff described these calls as superficial and that her mother was not receptive of a further relationship. 

HELD:  The court allowed for variation of the mother’s will. 

The court found that the reasons for disinheritance in the will were not accurate.  The mother and daughter may not have had a very close relationship, but there was reasonable communication between them for many years. 

The court outlined that the reasonable parent would not disinherit their child based on the 1996 argument and its context.  The rationale for the disinheritance was not rational or consistent with the mother’s moral obligations to her daughter. 

In assessing the amount of variation, the court took into account the fact that the defendant, the mother’s son and plaintiff’s half-brother, had a closer relationship with their mother.  With this in mind, the court apportioned the estate 40% to the plaintiff and 60% to the defendant son. 

[48]      The modern interpretation of the Wills Variation Act, R.S.B.C. 1996, c. 490, stems from the Supreme Court of Canada's decision in Tataryn v. Tataryn1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807.  The Tataryn case has been cited and applied frequently and I do not propose to review it in depth.

[49]      The case at bar involves two independent adult children of the testatrix.  Legal obligation is therefore not relevant and the only issue is moral obligation.  The moral obligation to adult children was described by McLachlin J. (as she then was) in Tataryn at 822-23 as follows:

... While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made. [citations removed]

[50]      The starting point for determining whether the moral obligation has been negated must be the reasons, if any, given by the testator for excluding the relative from the will.  In Kelly v. Baker1996 CanLII 1596 (BC CA), 15 E.T.R. (2d) 219, [1996] B.C.J. No. 3050 (C.A.) Finch J. (as he then was) stated:

58.      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), 1991 CanLII 564 (BC CA), 60 B.C.L.R. (2d) 282 (C.A.), Morris v. Morris (1982), reflex, 41 B.C.L.R. 239 (C.A.), and Lukie v. Helgason (1976), 1986 CanLII 173 (BC CA), 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.

59.      Here there was ample evidence to support the trial judge's conclusions.  There was good reason for the testator to believe that the plaintiff had abandoned the family, and good reason for her to feel that the plaintiff had treated her and her husband in a hateful and hurtful way.  Both reasons afford logical explanations for the testator's decision to disinherit the plaintiff.

[51]      The reason for Ms. MacDonald's disinheritance of her daughter was, as stated above, "no favourable communication between us in any way for approximately 20 years".  That was not accurate.  While the relationship may not have been a close one, Ms. Todd and her mother did have what would appear to be satisfactory communication from the time Ms. Todd moved to Sparwood in 1968 through to the April 1996 telephone call.  It is to be noted that Ms. Todd and her mother were geographically separated for a significant period of time and that the extent of their face-to-face contact would obviously be limited by that.

[52]      I think it is relevant to compare the communications and relationship between Ms. Todd and her mother to that of Ms. MacDonald's relationship with the rest of her family and others.

[53]      No witness, including Mr. Walker, described Ms. MacDonald as a warm or caring mother or grandmother.  There is no evidence of any close friendships that she enjoyed.

[54]      It is true that Mr. Walker was closer to Ms. MacDonald but that was partly attributable to him being in Cranbrook when Ms. MacDonald was here.  His visits to his mother in Vancouver were not much more frequent than Ms. Todd's visits prior to 1996. 

[55]      The events surrounding Ms. MacDonald's death provide an indication as to Mr. Walker's relationship with her.  He was not with his mother when she underwent the day surgery that led to her death.  He did not go to Vancouver until several weeks later.

[56]      It also took several weeks for Mr. Walker to tell his daughter of the death.  That is an indication of the nature of the relationship between Ms. MacDonald her granddaughter, or at least of Mr. Walker's perception of that relationship.

[57]      What then of the April 1996 telephone call, and subsequent events?  It is that call which appears to have caused Ms. MacDonald to make the will which effectively disinherited Ms. Todd.

[58]      Ms. Todd's reaction to learning of her grandmother being placed in a home could not be described as temperate.  However, she had some cause to be upset.  She had not been informed that her grandmother was moved to an old-age home.  That would naturally cause surprise and concern.  Ms. MacDonald's refusal to disclose her grandmother's location could only be expected to exacerbate that concern.

[59]      Family life does not take place within the frame of a Norman Rockwell painting.  In my view, a reasonable parent would not, after the heat of the moment subsided, regard the April 1996 telephone call – in its context – as a reason to disinherit Ms. Todd.

[60]      Fault for the breakdown of a relationship is a relevant factor:  Gray v. Gray Estate2002 BCCA 94 (CanLII).  If there were pre-existing tensions in the mother-daughter relationship that was as much Ms. MacDonald's fault as Ms. Todd's, and in part explainable by the sexual abuse of Ms. Todd by her stepfather.  Ms. MacDonald's refusal to come to the door when Ms. Todd came to visit on the one or two occasions – to which I referred earlier – is as attributable as much to irrationality on Ms. Macdonald's part as to anything else.

[61]      With respect to the contact between Ms. Todd and her mother after the 1996 telephone call, once again, while it cannot be described as close, it cannot be described as a complete estrangement either.  The somewhat distanced relationship was as much Ms. MacDonald's doing as Ms. Todd's.

[62]      In my view, therefore, Ms. MacDonald's rationale for disinheriting Ms. Todd was not valid, nor was it consistent with the discharge of her parental obligations.

[63]      In terms of whether and how the will should be varied, as I noted earlier, the financial circumstances of the parties are a neutral factor.  Further, as also recognised by the parties, their contribution to the estate is not an issue.

[64]      I therefore vary the will to provide for Ms. Todd.  In recognition of the fact that Mr. Walker's relation with his mother was somewhat closer, and perceived as such by Ms. MacDonald, I divide the estate 60% to Mr. Walker and 40% to Ms. Todd.