Elderly and Independent Child Awarded 50% of Father’s Estate

McEwan v. McEwan 2014 BCSC 916

Angus McEwan died September 19, 2006, just short of his 99th birthday.  He had made a will in 2003 which left his entire estate to his granddaughters, Karlynne and Shannon (they also were appointed as co-executors of his estate).  The Plaintiff, Malcolm, is Angus’s only child and is the father of Karlynne and Shannon. 

In 2006, Angus arranged to have an investment account, which had initially been in his name alone, to be transferred into the names of himself and Karlynne and Shannon, jointly.  The value of the account at the time of the transfer was ~$329,000.  As Karlynne and Shannon received the sizable investment account and were the only beneficiaries to Angus’s estate, Malcolm was left out entirely. 

Malcolm, 74, was of limited financial means and had not been employed since the early 1990s.  He had been living in a van and his only sources of regular income were from Canada Pension Plan benefits and Old Age Pension (including the supplement).  He and his father were estranged for a number of years, mostly due to the fact that he and his father’s second wife, Doris, did not get along.  Malcolm had been under the impression that he would receive a portion of the estate as Angus had made a will in 2001 which divided his estate equally among Malcolm, Karlynne and Shannon. 

Malcolm brought a claim for variation of the will as he believed that the 2003 will did not make adequate provision for him.  He also argued that the investment account that was transferred into the joint names of his daughters and his father was held in trust and that it formed part of the estate. 

The judge found in favour of Malcolm, finding that the will did not make adequate provision for him.  The judge found that Doris was the main source of any estrangement that occurred between Angus and Malcolm and given how the estrangement arose, the judge decided it did not justify disinheritance and passing over the moral duty owed to him.  The judge varied the will so that Malcolm was to receive 50% of Angus’s estate and that Karlynne and Shannon would receive 25% each.  The judge felt that this distribution would sufficiently recognize Angus’s moral obligation to his son and give due regard to his testatmentary autonomy. 

In relation to the claim that the investment account was held in trust and formed part of the estate, the judge did not find that this was the case.  The judge found that there was sufficient evidence to establish that Angus intended the naming of the account to be a gift.  The investment account was a gift and was not held in trust for the estate.  The judge did take into account the fact that it was a gift in making the determination on what was adequate, just and equitable in varying the will. 

The value of estate when probate was granted was ~ $366,000. 

90     Based on that evidence, I conclude that Malcolm did not abandon his father to an abusive relationship. Rather, Malcolm and Doris had a high degree of animosity toward one another, and Angus was caught in the middle. On the evidence, once Angus and Doris became a couple (and especially after they moved to Victoria), Malcolm's presence in Angus's life resulted in Doris becoming very agitated, and I conclude that when Malcolm and Angus were together, Malcolm saw the effects of this. However, the effects were temporary. Once Malcolm was gone, Angus and Doris again became the "cute couple" Karlynne described. There was no indication that Angus was going to, or wanted to, end his relationship with Doris. Malcolm's solution to the antagonism between Doris and him was to remove himself. It could be said that he took extreme and unusual measures to remove himself, but although that was not the only course possible, that was the course he adopted.

91     Angus knew about the difficulties between Malcolm and Doris and communicated his views concerning Malcolm to Mr. Carson when giving Mr. Carson instructions concerning the preparation of the 2003 Will. At that time he blamed Malcolm for the disagreements with Doris. Angus was certainly entitled to express his opinion, but rarely is one party to an unhappy relationship 100% to blame. The instructions Angus gave to Mr. Carson show that Angus was reluctant to place any blame on Doris; it was easier to blame his absent son. Although Malcolm must accept responsibility for his part in his estrangement from Angus, I would say that, objectively, both Angus and Doris also contributed to Malcolm's estrangement from his father. When, in the last months of Angus's life, Malcolm expressed a wish to see his father, Angus turned him away.

92     Ms. Simmons cites Kelly v. Baker (1996),15 E.T.R. (2d) 219, 1996 CanLII 1596 (B.C.C.A.) in support of her argument that, provided Angus had valid and rational reasons -- 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 -- his testamentary wishes should be respected.

93     In my opinion, the analysis cannot be so straightforward, based on Tataryn. I agree with Madam Justice Ballance's observation in McBride v. Voth2010 BCSC 443, at para. 141, where she comments on Kelly and on Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (C.A.), also cited by Ms. Simmons. Madam Justice Ballance says:

  • If the decisions of Bell and Kelly mean that the applicable test is whether a testator has valid (i.e. factually true) and rational (i.e. logically connected to the disinheritance) reasons for disinheriting a child, even where the reasons are unworthy of an objectively judicious parent based on contemporary standards, then they are difficult to reconcile with the fundamental precepts of Tataryn and the search for contemporary justice in the circumstances.

94     I do not read either Bell or Kelly as meaning that the applicable test is whether the testator has valid and rational reasons for disinheriting a child, as that test would, in my view, be incompatible with the principles set out in Tataryn. I note that in Inch (another case cited by Ms. Simmons on this point), A.F. Wilson J. did not stop his analysis with his findings that the testator had valid and rational reasons for her treatment of the claimant, but went on to consider other circumstances before reaching a conclusion on the question of whether the provisions in the will were adequate.

95     It is true that Malcolm and his father were estranged. It is true that Malcolm was not looking after Angus in the last decade of Angus's life. However, Malcolm was struggling to look after himself. Had Malcolm provided the kind of care and attention for Angus that Karlynne did, especially after Doris died, that would have intensified his moral claim on Angus's estate. However, I am not persuaded that Malcolm not providing such care and attention negates or eliminates any moral duty owing by Angus to his son.

96     Moreover, I conclude that the main source of the estrangement between Malcolm and Angus was Doris, and Angus was not prepared to give up his relationship with her. We will never know whether, after Doris's death, Malcolm's and Angus's relationship could have been repaired because Malcolm did not learn of Doris's death until after Angus had passed away.

97     I conclude that, given how the estrangement between Malcolm and Angus arose, it did not justify Angus disinheriting his son and the circumstances did not negate Angus's moral duty to Malcolm. I find therefore that the 2003 Will did not make adequate provision for Malcolm.

98     What provision would be adequate, just and equitable?

99     I have concluded above that the CareVest Account does not form part of Angus's estate. Nevertheless, the size of the estate (approximately $390,000 as of trial) is sufficient to allow Angus's moral obligation to Malcolm to be met, and to respect Angus's clear testamentary wish to benefit his granddaughters.

100     Moreover, the fact that Karlynne and Shannon received the CareVest Account as a gift is something that I can take into account in considering what would be an appropriate variation of the 2003 Will: see Inch, at para. 69 and McMain v. Leblanc2013 BCSC 891, at para. 97.

101     In my view, the provision that would be adequate, just and equitable would see Malcolm receive 50% of Angus's estate and Karlynne and Shannon receive 25% each. Such an allocation would sufficiently recognize Angus's moral obligations to his son, while giving due regard to Angus's testamentary autonomy.


102     In summary, I find that Angus intended to make a gift of the CareVest Account to his granddaughters, and, accordingly, the CareVest Account does not form part of Angus's estate. I find further that Angus did not make adequate, just and equitable provision for Malcolm in his 2003 Will, and I order that Angus's estate be divided 50% to Malcolm and 25% to each of Karlynne and Shannon.