Alternative Beneficiary Provision Aids Court In Finding Dismissive Mother Did Not Have Reasons To Disinherit Daughters

Brown v. Wisted Estate, [2010] B.C.J. No. 2665

Two of the daughters of Ms. Wisted sought to vary their mother's will after their sister, Debra Nichols, was named executrix and sole beneficiary.  Ms. Wisted had many children; 8 daughters and a son (who pre-deceased her), yet did not provide any reasons in her will for disinheriting them.  

Ms. Wisted was, to put it lightly, dismissive of her children.  She never supported them financially and even distanced herself from her first family with her common law husband, Mr. Long, whom she had seven children with.  She had little contact with them and left them to be wholly raised by their father.  She began a second life with Mr. Wisted, married, and accumulated assets during their relationship.  

The Plaintiffs, Muriel Ferguson, the oldest of Ms. Wisted's children with Mr. Long, and Faye Brown, the youngest of the children, sought variation under the Wills Variation Act.

The Experiences with Ms. Wisted

Ferguson detailed that she had received the brunt of abuse and responsibility in the home due to Ms. Wisted.  Although she had a difficult upbringing, she made a number of attempts to maintain contact with Ms. Wisted and, despite her modest financial means, she travelled to see her when she was informed that she was dying of cancer.  Ferguson had been disinherited in the will except for a provision which outlined her being named alternative executrix and alternative half beneficiary if Nichols pre-deceased Wisted, with the other half going to the children of Nichols.  

Brown was the youngest of the children and had a vivid memory of Ms. Wisted leaving the family home.  She was left deeply upset and made similar attempts to Ferguson to reconnect with her over the years and gradually developed a distant but positive relationship.  

Despite reconnecting with Ms. Wisted, she did not attend either of the weddings of Brown and Ferguson and did not visit when their children were born.  Throughout her life, Ms. Wisted refused to explain why she had left the children.  

Nichols' experience was far different.  She was the 2nd oldest of the children with Mr. Long and had two children as a teenager.  After a failed marriage with the father of her children, she was invited to live with Ms. Wisted.  She remained living with her for a number of years until she found a job in Vancouver.  She moved back some years later after Mr. Wisted had been diagnosed with a terminal illness.  Nichols did pay rent for a few years, but later stopped.  Her relationship with Ms. Wisted was much closer and she even went as far as describing her as a best friend.  Nichols also took a leave of absence from her job to further care for Ms. Wisted in the year leading up to her death.  Ms. Wisted placed her bank account in the joint names with Nichols so as to pay expenses.  Nichols was the primary caregiver at Ms. Wisted's death and testified that it had been mentioned a number of times that all was being left to her in the will.  

DECISION:  The court found it just and equitable to vary the will in favour of Ferguson and Brown.  The accounts and statements of the two sisters were credible and Nichols presented an unrealistic view of their mother's shortcomings as a parent.  Ms. Wisted acted without regard to her numerous children and was dismissive of her responsibilities.  The limited relationships that she did have with Ferguson and Brown were not to her credit, but to her children.  Ms. Wisted owed her children a moral duty and her belief that her children were getting enough from their father was not a valid reason to disinherit them.  The court took into account the fact that Ms. Wisted detailed that in the event that Nichols were to pre-decease her, Ferguson would be a partial beneficiary, as this was evidence that she had no reason to disinherit her.  In balancing testamentary autonomy and the moral duty owed to the children, the court also looked to the actions of Nichols.  Ms. Wisted clearly owed a greater moral duty to Nichols as she had been the primary caregiver to her in her final years.  It was noted that in addition to being the sole beneficiary, Nichols had received $236, 187 outside the will from Ms. Wisted.  

The court varied the will so that Ferguson and Brown were to receive $125,000 each from the estate valued at $464,000.  

ANALYSIS

108     The essential question in this case is whether the Will made adequate provision for the two plaintiffs. The circumstances existing at Ms. Wisted's death as well as those that were reasonably foreseeable to her at that time are to be taken into consideration to determine whether she has made adequate provision (Mawdsley v. Meshen, 2010 BCSC 1099 at para. 317).

109     It is uncontroversial that neither the plaintiffs nor Ms. Nichols have any legal claim against the estate.

110     I next address the moral claims of the plaintiffs. After she left the family home in 1968, Ms. Wisted made no financial contribution to either of the plaintiffs' support. Nor did she provide much in the way of any moral or emotional support in their formative years. While the difficulties the family encountered cannot all be laid at Ms. Wisted's feet, her absence and the path of emotional destruction she left behind her was likely a contributing factor to the dysfunction in her family and the emotional difficulties experienced by the plaintiffs.

111     Ms. Wisted appears to be a woman who, for reasons not made clear at this trial, did what she wanted when she wanted in her lifetime with little regard for her parental responsibilities. This is underscored by her refusal to provide any meaningful explanation to the plaintiffs for her abandonment of them as children. She was willing to have a relationship with the plaintiffs as adults, but only on her own terms. She made no effort to telephone them or visit, and she was not responsive to their respective invitations to their marriages or to share in the birth of their children. The only telephone communications they had were initiated by the plaintiffs; the only physical contact they had was when the plaintiffs visited Ms. Wisted in British Columbia.

112     As mentioned earlier this is not a case of estrangement between a parent and child. Despite the geographical separation, the history of their mother's abdication of her parental responsibilities and somewhat indifferent and callous treatment of them, the plaintiffs each made efforts to keep in contact with their mother and each in their own way came to accept her. Ms. Ferguson travelled to British Columbia to see her mother on two occasions, and Ms. Brown visited her mother in 1995 for two weeks at her mother and sister's invitation, and briefly on the two other occasions previously referred to. I accept that both plaintiffs were constrained in their efforts to a certain extent by their own financial circumstances. I find that to the extent each of the plaintiffs was able to reconcile with their mother it was more through their own efforts than those of Ms. Wisted.

113     In my view the evidence manifestly establishes that at her death Ms. Wisted owed a moral duty to Ms. Brown and to Ms. Ferguson. While recognising that the Act is not intended as a means of awarding compensation for family abuse, a judicious parent, in the circumstances of this testatrix, viewing the facts of this case objectively would recognize a moral obligation to the plaintiffs for her unfair treatment of each of them over her lifetime, including her refusal to discuss in any meaningful way her reasons for leaving the family home and her essential denial of any harmful consequences of her activities (Sawchuk v. MacKenzie Estate, 2000 BCCA 10 at para. 16; Doucette at para. 71). This duty is intensified in view of the efforts each of the plaintiffs made in their own way to reconcile with their mother. Like the testator in Gray, Ms. Wisted's Will was her last chance to do right by the plaintiffs.

119     Ms. Nichols also asserts that Ms. Wisted had a valid reason for not including the plaintiffs: they had "a tenuous relationship" with her. Given Ms. Wisted's rather difficult character, the evidence does not establish any conduct on the part of the plaintiffs that would justify their disinheritance. In considering the minimal effort Ms. Wisted made to the parent-child relationship with the plaintiffs over the course of her lifetime, it would be most unjust if the quality of the relationship the plaintiffs achieved with their mother, largely through their own efforts, negated her moral duty to them.

120     In short, to the extent that Ms. Nichols' counsel is asserting that the quality of their relationship with their mother ought to be construed as providing a valid and rational reason for their disinheritance, I find that this does not negate Ms. Wisted's moral duty to the plaintiffs.

121     I also observe that Ms. Wisted herself named Ms. Ferguson as her alternate executrix and the alternate beneficiary of half of her estate in the event Ms. Nichols pre-deceased her. This provision in the Will is entirely inconsistent with a valid and rational reason for disinheriting Ms. Ferguson. Rather, it signifies some recognition of the moral duty Ms. Wisted owed Ms. Ferguson.

127     In summary, based on the principles formulated in Bell and Kelly, I cannot find that there were valid and rational reasons for Ms. Wisted's disinheritance of the plaintiffs.

128     Ms. Nichols argues that it is a relevant factor for this Court that Ms. Wisted's estate was substantially accumulated during her marriage to Mr. Wisted. However I note that unlike the circumstances in Price v. Lypchuk Estate (1987), 11 B.C.L.R. (2d) 371 (C.A.), the competing claimant, Ms. Nichols, is not a child of Mr. Wisted. Moreover, Ms. Nichols does not assert that she contributed to the accumulation of her mother's estate.

129     In view of my findings, it is unnecessary to address the plaintiffs' submissions that the Court should draw an adverse inference from Ms. Nichols' failure to call the solicitor who prepared Ms. Wisted's Will.

DISPOSITION

130     Each of the parties is self-sufficient. Other than the recognition that unlike her sisters Ms. Nichols is single, it was not contended by either of the parties that there was a material difference in their respective financial circumstances as at the date of death. They are each comfortable but by no means wealthy.

131     I estimate the net value of the estate as of death to be $464,000. It is a relevant consideration for this court that as outlined earlier Ms. Nichols received $236,186.58 from her mother outside of the provisions of the Will.

132     In its search for contemporary justice, this Court must have in mind whether an adequate testamentary provision has been made for the claimants. In weighing the totality of the evidence in light of the relevant legal principles, I conclude Ms. Wisted did not fulfill the moral obligation of a contemporary judicious parent. She failed to make adequate provision for Ms. Brown and Ms. Ferguson.

133     It is not the function of this Court to rewrite the Will of this testatrix. Rather it is incumbent on this Court to vary the Will only to the extent required to provide the justice to Ms. Brown and Ms. Ferguson that the Will failed to achieve (McBride; Tataryn).

134     Ms. Nichols' steadfast devotion, companionship, and contributions to her mother's wellbeing and care during her final years enhance the moral duty that Ms. Wisted owed her. The Court must recognize that Ms. Wisted's paramount moral duty was to Ms. Nichols. In the result I conclude that Ms. Wisted did not owe an equal moral duty to the two claimants and Ms. Nichols.

135     In my view, in all of the circumstances a variation which provides a bequest of $125,000 to each of Ms. Brown and Ms. Ferguson is adequate, just, and equitable provision. This is commensurate with Ms. Wisted's moral obligations and recognizes the greater moral claim of Ms. Nichols to her mother's bounty.

136     There will be an order accordingly to vary Ms. Wisted's Will.