Elderly Spouse Awarded $300,000 From Wills Variation Claim

Philp v. Philp Estate, 2017 BCSC 625

Dr. Philp (84) brought a claim under s. 2 of the Wills Variation Act as he felt the will of his wife did not make adequate provision for him.  While both Dr. Philp and the deceased had previous marriages, they had a long relationship together and were married for 31 years.  The will provided Dr. Philp a life interest in the family farm property (owned originally by the couple as joint tenants) as well as the income generated from the residue of the estate until his death.  The value of the estate at the time of death was valued at $677,000. 

The claim asked two basic (but important) questions: 

1.      Did Mrs. Philp, by her will, make adequate provision for her surviving spouse, Dr. Philp? 

2.      If not, what is the adequate, just and equitable provision that should be made for him by the court? 

The defendants to the action were the testator’s children from her first marriage.  The defendants maintained their mother made adequate provision for her husband and asked for the court to uphold the will as she intended. 

Upon reviewing the evidence, the judge found the testator had satisfied her legal obligations to Dr. Philp, but there was a strong moral obligation owed to him as he had greatly contributed to the farm and horse business.  Additionally, Dr. Philp had significantly provided care for his wife as a physician over and above what most other spouses would do.  As noted by the judge, “the marriage was long and his contributions to the testator clearly fervent desire to live on the farm and run the horse business were also significant”.  Based on the moral obligation owed to him, the will did not make adequate provision for him. 

After assessing how to properly vary the will, the judge concluded a lump sum in the amount of $300,000 would balance the moral obligation owed to Dr. Philp.  The judge noted it was a difficult decision due to the nature of the principal asset of the estate, a farm property with deep meaning and value to the children (the estate was largely the farm property and therefore not liquid).

Notably, while Dr. Philp’s health had greatly deteriorated (dementia), this was not a relevant factor in assessing whether the testator had made adequate provision for him in the will as this occurred after the death.  As only those circumstances existing or reasonably foreseeable at the time of death are relevant to this initial question.  While this was not relevant to the first question, a change in Dr. Philp’s health may be considered in determining the award if the court finds that adequate provision had not been made at the time of death. 

ANALYSIS

Does the Will make Adequate Provision?

[76]        As per Tataryn, the first question I must first consider is whether the legal obligations imposed on the will-maker have been met. This is essentially determined by asking the question of what would the plaintiff have been entitled to if the will-maker’s legal obligation to him had arisen during her life and whether that obligation has in fact been met.

[77]        The will-maker would have no legal obligation to her five children who are all adults and are financially independent. The issue is her legal obligation to Dr. Philp ‑‑ the surviving spouse in this instance.

[78]        As noted, the defendants essentially argue the legal obligation has been met as per their mother’s potential obligations under the Family Law Act. Dr. Philp, on the other hand, relies on Kish at para. 49 to argue the WVA should not be used as a proxy for divorce proceedings. He also notes the Family Law Act provides for unequal division in any event, and that his contribution over the years to the farm should be taken into account in that respect.

[79]        In considering whether adequate provision has been made, the value of the estate is important. That value is $677,000. Also relevant is Dr. Philp’s assets at the time of Mrs. Philp’s death, which totalled $600,000.

[94]        The evidence establishes that Mrs. Philp’s desire and wish was to provide the farm to her children. She was passionate about the horse business and spent her entire married life on the farm trying to keep the horse business going. Her children were raised on the farm property -- albeit one much larger than the portion of the farm remaining after the original property was divided in her divorce settlement in 1980. Once the children became adults, the family still spent a significant time on the farm, with the children helping with various tasks and the grandchildren regularly attending the farm.

[95]        These cases are difficult to resolve especially when one sees the deterioration of what was once a loving, supportive relationship between all the parties as a family. It is clear Dr. Philp was part of that family, which encompassed Mrs. Philp and her children and their grandchildren, undertaking many activities together. The grandchildren even considered and referred to Dr. Philp as their grandfather. That has all changed for the worse with the onset of this dispute over the will.

[96]        In balancing these factors and the moral obligations among the beneficiaries, I conclude there is a strong moral obligation owed to Dr. Philp, who assisted throughout in trying to make the farm and horse business a success . Furthermore, he provided significant care for his wife as a physician over and above what most other spouses could do. The marriage was long and his contributions to Mrs. Philp’s clearly fervent desire to live on the farm and run the horse business were also significant.

[97]        I conclude therefore that based on her moral obligations to Dr. Philp, the will as presently framed does not make adequate provision for Dr. Philp.

What is Adequate, Just and Equitable Provision?

[98]        Although not relevant to the first question, a change in a plaintiff’s health may be considered in determining the award if the court finds that adequate provision has not been made at the time of death: Eckford, Hall v. Hal, 2011 BCCA 354 (CanLII).

[99]        There has been a decline in Dr. Philp’s mental capacity resulting in significant costs associated with his private assisted living facility and 24/7 care. Those costs are said to presently amount to $7,000 per month but could be in excess of $100,000 per annum if Dr. Philp is moved to Vancouver to be closer to Ms. Isaak. The defendants nonetheless objected to much of the evidence on his expenses. I take these to be approximate amounts only in making my assessment in this case. There is no doubt extra amounts are to be incurred in dealing with Dr. Philp’s declining health.

[100]     As noted earlier this is a difficult situation due to the nature of the principal asset of the estate -- a farm property with deep meaning and value to the children. While the estate is largely the farm property and therefore not liquid, I conclude an equitable division of that asset in the circumstances, is a lump sum in the amount of $300,000 to be awarded to Dr. Philp.

[101]     In my view, that result both balances the legal and moral obligations owed by the will-maker to Dr. Philp and gives effect as best it can to her clear intention to keep the farm in the family. In these circumstances, this division provides adequate, just and equitable support to the plaintiff and an equitable result for all involved.