Not Too Late - Estranged Son Brings Action for Share of Father's $600,000 Estate

Re Strom Estate, 2017 BCSC 824

The testator had two sons, but one did not know the identity of his biological father until his teenage years.  When the testator died, he left the estate equally between his sister, the executrix of the estate, and one of his son’s (E).  Subsequently, in 2013, E’s mother brought an application (as legal guardian), on E’s behalf, under the Wills Variation Act to vary the will.  Through this application, the matter was settled whereupon E would receive 80% of the estate and W would receive 20%.  Later, the estranged son, J, brought an action for an order that the will provide provision for him.  

The executrix applied for a declaration that the other son, J, had adequate notice of probate of the estate and that she be permitted to distribute the estate as varied by the 2013 order.  But, in October 2016, J brought proceedings for an order that the will be varied to provide him with a provision from the testator’s estate.  The executrix’s application was dismissed except for the portion of the application seeking direction as to alternate relief and the executrix was permitted to distribute $200k from the estate.  J’s action was brought considerably late, outside the relevant limitation period, but was found to not be statute barred by reason of the action brought by E’s mother, on behalf of E.  J was a person who “might” have applied for variation had he had particulars of the estate at the time probate was granted and had he had full particulars of the estate at the time E’s representative applied to vary the provisions of the estate in his favour.  Importantly, at the time the order was made settling E’s application, the executrix was aware of the possibility of J having entitlement to a share in the estate.  Unfortunately, no documentation sent to J regarding the settlement of E’s application referred to the size of the estate.  J could pursue his action, but was required to do so diligently and with dispatch. 

The judge found that the lack of disclosure to J of the net value of the estate resulted in the executrix being unable to rely on estoppel to defeat J’s potential entitlement to share in the estate.  The judge also found any delay of J in bringing proceedings was excusable given the unique factors including J’s age, state of mind after discovering the identity of his biological father and the lack of information provided to him regarding the value of the estate. 

44      Clearly Jacob's action is considerably outside the limitation period of "6 months from the date of the issue of probate" set out in s. 3(1) of the WVA. However in Elves v. Elves Estate, 2005 BCSC 1191 (B.C. S.C.), Justice Johnston considered whether a son of the deceased, who had not brought a claim under the WVA, nonetheless was entitled to be considered as having a claim to an interest in the deceased's estate. Justice Johnston held he did on the basis of the language of s. 4(1) of the WVA at paras. 14-16 stating:

[14] Michael Elves made no claim under the Wills Variation Act and has sworn an affidavit saying that although he was aware he could have made such a claim, he elected not to do so because he was in favour of the settlement he thought had been negotiated with Mrs. Elves.

[15] I must bear in mind Michael Elves' circumstances as they bear on the question of what would be adequate, just and equitable should variation of Mr. Elves' will be considered. Michael Elves must be considered in my view because of the wording in s. 4(1) of the Wills Variation Act:

4 (1) If an action has been commenced on behalf of a person, it may be treated by the court as, and so far as regards the question of limitation is deemed to be, an action on behalf of all persons who might apply.

[16] Michael Elves might still therefore make a claim under the Wills Variation Act, the plaintiff having preserved his cause of action by this action, and in my view I must consider whether his circumstances should cause me to treat this action as having been brought on his behalf.

45      I am of the view the s. 4(1) of the WVA should be applied in a similar manner in this case and therefore conclude that Jacob's claim is not statute barred by reason of the action brought by Heather on behalf of Ewen. Jacob is a person who "might" have applied had he had particulars of Roland's estate at the time probate was granted and had he had full particulars of Roland's estate at the time Ewen's representative applied to vary the provisions of Roland's will in Ewen's favour.

46      When Wendy applied for Probate of Roland's estate in August 2011 and as late as February 2012 when Heather filed her WVA application to vary the terms of Roland's will, it is clear Wendy was not aware of Jacob or that Roland had a second son. However, at the time the Order was made settling the WVA application Wendy was aware of the possibility of Jacob having an entitlement to share in Roland's estate.

47      While Jacob was provided with a copy of the Order approving the settlement of Ewen's WVA application, neither the letter from estate counsel nor the Disclaimer and Release sent to him for signature made any reference to the size of Roland's estate. Had they done so, it is quite possible Jacob's response would have been different than to stand by and do nothing. From what he did know of Roland's circumstances he could certainly infer that there would not have been much substance to his estate.

Discussion Re Prejudice

51      The practical effect of allowing this application would result in the dismissal of Jacob's claim against his father's estate. No party takes the position Roland did not owe a Jacob a legal duty to make some provision for him in his will. The positions taken, as discussed, are that he misrepresented the facts about his adoption and his legal review of the documents, that others have been prejudiced to their detriment by such misrepresentations and/or his inaction and that the court should apply the principles of promissory estoppel to prevent injustice to the parties.

52      The defendants rely on the well-known comments of the Supreme Court of Canada in Maracle v. Travelers Indemnity Co. of Canada, [1991] 2 S.C.R. 50 (S.C.C.) at 57:

The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position. . . .

53      In my view, given the lack of disclosure to Jacob of the net value of Roland's estate, the executrix is not entitled to rely on the equitable principle of estoppel to defeat Jacob's potential entitlement to participate in Roland's estate.

54      Further, Jacob's concession that the Executrix can proceed to distribute $200,000 from the estate notwithstanding the determination of his action means that any prejudice to those who have incurred liabilities will be substantially lessened.

55      Lastly, the court will not lightly dismiss an action for want of prosecution: PMC Builders & Developers Ltd. v. Country West Construction Ltd., 2009 BCCA 535 (B.C. C.A.). In this decision at para. 27, Justice Low outlined the four considerations which apply in an application for dismissal for want of prosecution:

. . .

(1) the length of the delay and whether it was inordinate;

(2) any reasons for the delay either offered in evidence or inferred from the evidence, including whether the delay was intentional and tactical or whether it was the product of dilatoriness, negligence, impecuniosity, illness or some other relevant cause, the ultimate consideration being whether the delay is excusable in the circumstances;

(3) whether the delay had caused serious prejudice to the other defendant in presenting a defence and, if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial after its reactivation by the plaintiff; and

(4) whether, on balance, justice requires dismissal of the action.

56      Justice Low said at para. 28 that the fourth consideration was encompassed in the preceding questions and was the most important and decisive question.

57      In my view, when considered "on balance," justice does not require dismissal of Jacob's action. I find his delay in proceeding earlier is excusable given the unique facts of this case including his age, his marital circumstances, his state of mind after discovering the name and circumstances of his real father, his attempts to make contact with family members and shortly thereafter learning of Jacob's death, Ewen's poor health and subsequent death, his lack of information about the value of Roland's estate and his willingness to concede that some portion of Roland's estate can be distributed at this time to lessen prejudice on other parties as outlined above.

58      It is important to note I make no observations on the strength of Jacob's WVA application. These reasons are based on the affidavit material before me. There are conflicts in the affidavits, most notably over whether Jacob told Wendy that he had been adopted by his stepfather. The trial judge will be in a much better position than I to resolve this and other evidentiary matters. The trial judge will also assess Jacob's claim in the context of the WVA or the relevant sections of WESA, a task which is not before me on this application.