Mother's will varied to provide daughter with 23% of estate worth ~$2.75 million

Kelly v. Bell Estate, 2012 BCSC 841

Valerie Kelly brought an action under s.2 of the WVA for an order that adequate, just and equitable provision be made for her out of her mother's estate (Mrs. Bell).  Since the writing of her mother's will, the value of her property had increased and Valerie was to be left with merely ~12% of the estate with her brother receiving the vast majority, including a house valued at over $2 million.  Valerie did acknowledge that her relationship with her parents had been strained and her brother had provided care to both of them in their later years, but she felt that the small portion did not meet her mother's moral obligation.

The court provided a clear set of facts, adhering to Tataryn principles, that were relevant in coming to a decision:

    I find the following facts to be relevant considerations in the task before me of balancing the principle of testamentary autonomy with the principle of adequate, just and equitable provision for adult independent children of testators (Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807):

1.      The plaintiff is 66 years old. She graduated from the University of British Columbia with a Bachelor of Education degree in 1968, but did not pursue a teaching career until 1989, when she began work as a special education assistant. She retired from this occupation in 2009. She has been married since November 1967 and she and her husband have two grown sons in their thirties.

2.      The defendant is 62 years old. He graduated from Capilano College in 1972 with an audio-visual diploma. He worked at a number of different jobs. He was fired from some and became disillusioned with others. He lived at home with Mr. and Mrs. Bell, rent free, until 1982. He returned to the home after his divorce in 1994 to live with Mrs. Bell. He still resides there with one of his two adult daughters.

3.     The plaintiff and her husband own an unencumbered house in North Vancouver assessed at $868,600. Until the plaintiff's retirement, their combined income was over $100,000; now it is around $94,000. They have RRSPs of approximately $390,000 and the expectation of an inheritance from the plaintiff's father-in-law of about $300,000 to $400,000.

4.      The defendant has operated his own gardening business since 2001 but his income has decreased as a result of Mrs. Bell's health decline and her need for greater care, and his own physical ailments. He has earned in the range of $19,000 to $30,000 per year in his gardening business. He has no RRSP, private pension or other assets besides his vehicles which are worth, in total, about $220,000. He values his personal effects at about $18,700.

5.      The plaintiff's relationship with her parents was strained in earlier years. Mrs. Bell blamed the plaintiff for refusing to participate in a débutante ball, and more significantly, for excluding her parents from her wedding plans and refusing to allow them to attend her wedding ceremony. Most significantly, Mrs. Bell was critical of the plaintiff for not visiting her father in hospital before he died, although the plaintiff says Mrs. Bell advised her to stay away because the plaintiff was pregnant.

6.      Mrs. Bell's calendar showed that after an initial period of about 18 months, she had contact with the plaintiff more than once a month in those early years of the plaintiff's marriage. In later years, the plaintiff phoned Mrs. Bell regularly and they celebrated holidays and birthdays together.

7.      The defendant appears to have had an excellent relationship with Mrs. Bell. The evidence of himself and others, including the plaintiff, establishes that he not only cared for Mrs. Bell physically and emotionally, but they were friends and enjoyed each other's company. In his youth, the defendant had suffered from a learning disability at school and was unable to attend university. Mrs. Bell worried that his employment opportunities were limited.

8.      In 1980, Mrs. Bell swore a statutory declaration setting out her reasons for the unequal division of her estate between the plaintiff and the defendant. These were:

  • THAT I have considered it my duty as a good mother to give the family home and contents thereof to Irving because he has not had the benefit of a university education and because he does not have the employment opportunities that I wish were available to him.
  • THAT my daughter, Valerie Evelyn, has the economic support provided by her husband as well as the benefit of a university degree.
  • THAT my daughter, Valerie, has in the past indicated her wish to disassociate herself from our family and has caused great pain and suffering to her father and myself in making these decisions at the time of her marriage and at the time of her father's death.

9.      In 2006, Mrs. Bell sought legal advice from Mr. Hetherington, a wills and estates solicitor. Based on information from Mrs. Bell and the defendant that the house was worth about a million dollars and the residue consisted of about $860,000 cash, Mr. Hetherington advised Mrs. Bell that she had probably made adequate provision in the Will for the plaintiff. Mrs. Bell decided to make no changes to her 1980 Will.

10.  Later in 2006, Mrs. Bell suffered a stroke. The defendant worked hard to help her rehabilitate and became the equivalent of an at-home caregiver.

11.  About six months before her death, the defendant bought a Porsche for $130,000 from an account he held jointly with his mother.

The court went on to vary the will to allow for Valerie to receive 23% of the estate valued at ~2.75 million to account for the increase in value of portions of the estate over the years.  The judge felt that a 77/23 split, which was what was initially decided when the will was drafted, was on the low side, but it was within the acceptable range of adequate, just and equitable distribution.  The court took into account the tension between Valerie and her parents, the fact that her brother contributed greatly to their parent's welfare, and an appreciable need on the part of her brother for future financial security.  

10     The real issue here is the effect of the huge increase in value of the asset Mrs. Bell bequeathed specifically to the defendant. At the time of reviewing the adequacy of the provisions of her will in 2006, Mrs. Bell believed her house to be worth around a million dollars and the rest of her estate which she had bequeathed equally to her children to be worth $860,000. Thus the defendant would receive assets worth $1.43 million and the plaintiff would receive assets worth $430,000. On a pro rata basis this is approximately 77% to the defendant and 23% to the plaintiff.

11     A division of 77/23 is probably on the low side, but I would not find it to be outside the range of adequate, just and equitable distribution. However, by the time of Mrs. Bell's death, the value of the house had doubled, and the plaintiff's pro rata share of Mrs. Bell's assets at the time of death has now decreased to about 12%. I do not think this bequest is within the range of society's reasonable expectation of a judicious person in the circumstances. This is dangerously close to a disinheritance of the plaintiff and I do not think that was ever the intention of Mrs. Bell.

12     This is not a case of lengthy estrangement, or condemnable conduct on the part of the plaintiff, or enormous disparity between the means of the plaintiff and the defendant. This is a case of historical friction between Mrs. Bell and the plaintiff, greater contribution by the defendant to the welfare and well-being of Mrs. Bell, and a greater need on the part of the defendant for future financial security. These factors and perhaps other, less significant and less clearly expressed concerns caused Mrs. Bell to weigh distribution more heavily in favour of the defendant, but not to the extent of giving him almost 90% of her estate.

13     I am satisfied that varying the Will to reflect a 23% share to the plaintiff of the entire estate, including the house, properly balances the objective of s. 2 of the Wills Variation Act and the testamentary intention of Mrs. Bell.

14     I cannot fix the dollar amount to which the plaintiff is entitled because the residue of the estate is subject to the cost of administration. However, granting an order to the plaintiff that she is entitled to 23% of the value of the entire estate, including the house, should allow the parties to resolve this matter.