Adult Independent Children Not Entitled to Share in Step-mother's $760,000 Property - No Wills Variation Granted.

Sim v. Sim Estate, 2016 BCSC 1222

The testator died February 1, 2012 at age 85 and left behind a wife and a number of adult children from two marriages.  The children from his first marriage sought variation of the will pursuant to s. 2 of the Wills Variation Act and a declaration that Betty Sim (Mrs. Sim), the executrix and trustee of the estate, holds a Peachland property in trust for the estate. 

The plaintiffs, the children from the deceased’s first marriage to Marie Burns, seek variation of their father’s will which leaves the entire estate to his second wife, Mrs. Sim.  Mrs. Sim married the deceased in 1971 and they had two children, Samuel and David.  The testator executed his last will on January 28, 2010 and left the estate to Mrs. Sim. 

The value of the estate is in dispute and consists of the following:

Credit union account:  30,239.50

Raymond James Account:  30, 324.11

RBC Insurance Policy:  4,983.91

London Life Insurance Policy:  7,629.37

Value:  73, 176.89

The plaintiffs also take the position that a property, the Peachland property, worth ~$760,000 should be included as part of the estate.  The property had originally been owned by Mrs. Sim’s father and she then purchased it from him in 1976 at an affordable price.  In 2010, the testator, Mrs. Sim, David and Samuel agreed that they would transfer the Peachland property into the names of the testator, Mrs. Sim and David as joint tenants.  This had been done for estate planning purposes to avoid probate fees and to ensure that David would own the property after the death of the testator and Mrs. Sim. 

At a family gathering for a relative’s 85th birthday in 2010, the testator met with Gordon, Karen, Ronald, and Sheila to discuss his will, the life insurance policy, and the agreement among Mrs. Sim and David.  It was at this meeting that the testator mentioned he would leave $50,000 to each of the plaintiffs by way of a life insurance policy.  The policy was a last survivor policy with Mrs. Sim so they would receive the benefit upon her death. 

The plaintiffs felt the distribution was not adequate or just, especially if the Peachland property were to form part of the estate. 

HELD: 

The judge referenced Tataryn principles as well as McBride v. Voth, which set out the considerations that apply in determining the existence and strength of a testator’s moral duty to adult independent children.  The judge’s conclusion was that there would not be a variation order and the claim by the plaintiffs was to be dismissed. 

As for the Peachland property, the judge reviewed the history of the property and found that it did not form part of the estate.  The testator held it jointly at his death with Mrs. Sim and David.  It was originally owned by Mrs. Sim’s father and then sold to her.  It was then placed into joint tenancy by her such that the testator and David became joint tenants.  Upon death, the property passed to Mrs. Sim and David as surviving joint tenants and, in the judge’s view, was not held in trust for the testator.  The evidence did not establish that any of the testator’s proceeds from the sale of his Surrey house went towards the purchase of the Peachland property.  Therefore, the total value of the estate was limited to $73,176.89.

As for the plaintiff’s moral duty claim, which they submitted was owing because of the corporal punishment administered by the testator when they were young, while the judge accepted it was severe, they did not consider it to establish a claim based on moral duty. 

Given the value of the estate, the judge did not consider that the size permitted a variation of the will in favour of the independent adults. 

The testator had considered the plaintiffs and his moral obligation and felt that the insurance policy satisfied any duty owed.  The life insurance policy is to provide $50,000 to each of the plaintiffs on Mrs. Sim’s death and, comparing this to the total value of the estate, it is adequate and just in relation to the legal and moral duty of the testator.  

[74]         In considering the Testator’s moral duty to the adult plaintiffs it is important to first determine the value of his estate.

[75]         The plaintiff’s position is that the Peachland property should be considered part of the estate or is held in a trust for the plaintiff’s. If that property is not included then the value of the estate is $73,176.89.

[76]         In Hossay v. Newman, [1998] B.C.J. No. 3289, shortly before his death a testator placed his major asset in joint tenancy with one of the defendants. The assets passed to that defendant as a surviving joint tenant and the court said that they did not form part of the testator’s estate.

[77]         In the case at bar the Peachland property was held jointly by the Testator, Mrs. Sim and David. It was originally owned by Mrs. Sim’s father and then sold to her. It was later placed into joint tenancy by her such that the Testator and David became joint tenants. Upon the death of the Testator, the property passed to Mrs. Sim and David as surviving joint tenants and, in my view, it did not form part of the Testator’s estate.

[78]         The evidence fails to establish that the Peachland property was held in trust for the Testator’s estate. The evidence does not establish that the Testator applied any of the proceeds from the sale of his Surrey house towards the purchase of the Peachland property. At best he paid for some lumber and shakes and it is apparent that the house itself is of little value.

[79]         I also find that the Winalta trailer is not an asset of the estate. The evidence establishes that none of the purchase price for the trailer was paid from funds of the Testator.

[80]         In the end result I find that the total value of the assets of the estate which were bequeathed to Mrs. Sim was $73,176.89.

[81]         I do not consider that by reason of her acquisition of the Peachland property Mrs. Sim was unjustly enriched. She purchased the property from her father in 1976 and later placed it into joint tenancy with the Testator and her son, David. Upon the Testator’s death she and David became the owners as the surviving joint owners. That does not form the basis for a claim that she was unjustly enriched. If she was enriched it was because she was fortunate to have acquired the property from her father in 1976 for a price that she could afford.

[82]         To the extent that Mrs. Sim was enriched by the Testator, in my view that was appropriate in view of his moral and legal obligations to her as his spouse. I would consider that a juristic reason for the enrichment.

[83]         The bequest to Mrs. Sim can also be viewed as discharging a moral duty of a high order. I agree with the defendants that none of the plaintiffs contributed much, if anything, to the estate, to support a moral claim against it. In fact, as established by the defendants, the present value of the premiums paid by the deceased and Mrs. Sim on the life insurance payable to the plaintiffs on her death is $100,500. This has had the effect of reducing the value of the estate for the ultimate benefit of the plaintiffs.

[84]         The plaintiffs submit that a moral duty arises because of the corporal punishment administered by the Testator when they were in their youth. The plaintiffs have described the punishment as abuse. While I accept that the punishment of the plaintiffs was severe, I do not consider it to establish a claim based on a moral duty in this case.

[85]         As pointed out by the defendants, if the Testator had not left a will, Mrs. Sim would have been entitled to his entire estate by virtue of section 21(5) of the Wills, Estates and Succession Act, [SBC 2009] c. 13. In my view it would not be just and equitable if she were to receive less under the Testator’s will than she would if he had died intestate.

[86]         In light of my finding as to the value of the estate, I also do not consider that the size of the estate permits a variation of the Will in favor of the independent adults. I have also considered the financial needs of each of the plaintiffs.

[87]         It should be mentioned that many of the case authorities regarding an application to vary a Will involve circumstances where a claimant has been disinherited. In the case at bar it is clear that the Testator considered his moral obligation to the plaintiffs and felt that it was satisfied by the acquisition of a life insurance policy payable to them. While he initially intended to acquire a policy of $500,000 on his life that would be payable to all of his children such that the benefit would be about $71,000 to each of them, the London Life policy will provide about $50,000 to each of the plaintiffs upon the death of Mrs. Sim. While the present value of that benefit is in the vicinity of $40,000, when that is compared to the total value of the estate it appears to be adequate and just in relation to the legal and moral duty of the Testator.

[88]         In the circumstances, I do not find it necessary to order an accounting of what is owing to the estate.

[89]         In all the circumstances the claim by the plaintiffs is dismissed with costs to the defendants.

[90]         To ensure that the intention of the Testator to provide the proceeds of life insurance to the plaintiffs is not defeated, I order that Mrs. Sim continue to pay the premiums on the London Life policy which was referred to earlier in these reasons and that she make the plaintiffs the irrevocable beneficiaries thereof.