Cathy Pearce died October 4, 2012 at the age of 68. She left a will which outlined bequests to family and friends with the residue to three of her grandchildren whom she held very dear (she did not know of her fourth grandchild). To her two children, Lynn and James, she left $10,000 with the explanation:
“I wish to leave no more than $10,000 referred to above to my estranged son, James David John Brown. Although I have sacrificed for him and I have supported him over the years, he has refused any contact with me, and, since 1995 when I left the family home, he has made it clear he wants no further relationship with me.
“My daughter Lyn Alvalee MacKinnon has already received a cash payment from me which was understood by her to be her inheritance.”
James brought an action for variation of Cathy’s will as he believed the will failed to make adequate provision for his proper maintenance and support. The size of the estate, after fees and costs, was ~$300,000.
James claimed that following the separation of his natural parents, his mother and stepfather were verbally and physically abusive. He detailed a troubled childhood where swearing and name-calling were the norm and a habit which he himself picked up. He described his mother as angry, impulsive and unpredictable. Claiming his parents did not give him any money, he took jobs from the age of 11 to buy food and school supplies with the priorities being to “eat, work, and get out of the house”. As he grew and got older, the abuse declined and had essentially ceased altogether by the time he finished high school and moved out.
The judge found his evidence difficult to reconcile with a note that James and his wife had given to his mother and stepfather at the time of their wedding:
“Our greatest gift from you both is your incredible love and understanding. …If there is anything we want, it is a marriage as wonderful as yours. You are both perfect role models to us. We love and respect you. … You make us both feel loved and wanted.”
The note contrasted heavily with the plaintiff’s description of their relationship.
The plaintiff and his mother had very little contact after she separated from his stepfather in 1995 due to abuse. His mother had left the family home and entered a shelter for battered women. They had a brief encounter in 2005 at a police station, where she worked, when he attended for business purposes, but they only spoke in a limited fashion. Apart from this encounter, the plaintiff did not make any effort to find or contact his mother in the 17 years from 1995 and her death in 2012. He felt he was being a “dutiful, considerate, and loving son” by “respecting her wishes to stay away”.
The judge did not accept this evidence as it was “illogical, indeed absurd” and it would have been an easy matter for the plaintiff to discover her whereabouts in the 17 years of estrangement. The judge found that the plaintiff deliberately created the lengthy estrangement with his mother as he neither had desire nor intention of having any relationship with her.
The judge dismissed the plaintiff’s claim for variation of the will. The onus was on the plaintiff to demonstrate that the deceased’s reasons for the modest bequest in her will were neither valid nor rational and he failed to meet this onus.
143 I do not accept as correct the plaintiff's characterization of the 1995 incident as an expression by his mother to spurn all further contact with the plaintiff. To the contrary, I find as a fact that it was the plaintiff and not his mother who created and perpetuated the estrangement from that date to her death some 17 years later.
144 There is ample evidence to support the conclusion, and I find as a fact, that the deceased dearly loved her grandchildren, including the plaintiff's son Jordan, and that she would have loved to have been introduced to and to have the opportunity to develop a relationship with her fourth grandchild, Naomi. The plaintiff did not introduce Naomi to her grandmother, not because he was a dutiful son respecting his mother's wishes for no contact, but rather because he had neither desire nor intention to do so.
145 The plaintiff's characterization of the 2005 incident at the Vancouver Police Department as an attempt on his part to repair the relationship with his mother is simply not credible. He acknowledges there was no greeting, no expression of affection, no attempt to discuss the new granddaughter as a bridge for reconnection, all of which he says would have been "not appropriate". He simply gave her his business card along with, so he says, the comment "mom, it does not have to be this way". Again, the plaintiff's version of this event, in respect of which he is the only witness who can testify, rings hollow.
146 There is evidence, albeit not substantial, that the deceased asked after her son's welfare and made some effort to communicate with him. I find as a fact that this occurred and I also find that the plaintiff refused to contact his mother when his ex-wife Kal suggested he do so.
147 The plaintiff submits that the deceased was a mean-spirited and abusive mother who was the primary cause of the estrangement and who spitefully breached a moral obligation which existed in the circumstances of the case to provide more than a modest $10,000 bequest to her son in her Will. The plaintiff claims that, contrary to the reasons stated in the Will, there is simply no truth to the assertion that he had "refused any contact" with the deceased or that he had "made it clear that he wants no further relationship" with the deceased.
148 Rather cleverly, the plaintiff argues there could not possibly be any "refusal to make contact" because such contact had never been invited by the deceased, i.e. there was no offer to refuse. But of course this argument ignores that in common parlance a "refusal" can simply be an "unwillingness to do something".
149 I have found as a fact that from mid-1995 onwards the plaintiff was completely unwilling to try and repair the estrangement from his mother and, indeed, deliberately perpetuated it.
150 The onus is on the plaintiff to demonstrate that the deceased's reasons for the modest bequest in her Will were neither valid nor rational. He has not met that onus.
151 Similarly, while estrangement or relationship breakdown that is largely at the fault or insistence of the testator will not negate, and may even enhance, the testator's moral duty to make provision in a Will for her independent adult children, I have concluded that the estrangement in this particular case was at the fault and insistence of the plaintiff and not the deceased. In such circumstances, any such moral duty that may otherwise have existed has been negated in this case and leads to the conclusion that the bequest in the Will is neither inadequate, unjust nor inequitable in the circumstances.
152 The plaintiff's action was dismissed.