• Daugherty Estate v. Roberts (S.C.)
• Gibson Estate, Re (C.A.)
• Martinson v. Martinson Estate (S.C.)
• Waldman v. Blumes Estate (S.C.)

• ADMINISTRATION OF ESTATE - Collection of assets
• MENTAL INCOMPETENCE - Committees
• WILLS - Variation
• WILLS - Variation

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ADMINISTRATION OF ESTATE — Collection of assets — Estate executor suing several defendants, seeking to recover assets allegedly wrongfully obtained from the deceased soon before his death — Court ordering one defendant to repay credit card advances taken the day of and day after the executor’s death, and setting aside a car transfer made on day of his death — Court also setting aside transfer of a truck made by first executor which was not bequeathed in the will.

Under his 1997 will, the testator D. left the majority of the residue of his estate to his stepdaughter and her three children. He appointed his brother R. as executor, with his stepdaughter’s husband F. as the alternate executor. In 2007, D. took in the defendant G., who had split up with her erstwhile boyfriend, and a relationship developed between them. D. gave G. a credit card and G. used it extensively, with D. paying the bills. Just hours before D. died in January 2009, at age 80, G. obtained D.’s signature on a document transferring his car to her. While R. was executor he transferred to D.’s sister and her husband, the defendants GR and BR, a 1946 Chevrolet truck which D. had owned and restored. GR claimed that D. had always promised to gift the truck to her and her husband. The plaintiff became executor when R. renounced. He took the position that G. obtained cash and other benefits that constituted estate assets by her use of the credit card and the transfer of the car. The plaintiff took the same position with the transfer of the truck to GR and BR. In addition, their son had obtained a backhoe from D. in the year before his death. The plaintiff brought an action seeking to recover what was said to be estate assets from the several defendants. HELD, in part for plaintiff. D. entered into a relationship with G. with his eyes, and wallet, open. He provided her with a companion credit card to his own without any spending limits. He paid the credit card bills when they came in, including the cash draws taken from time to time by G. While it was probable that she took financial advantage of him, he let her do it. With certain exceptions, the estate was responsible for the entire credit card bill at D.’s death. Those exceptions were two cash withdrawals of $500 each used by G. to pay for insurance on the car she had transferred to her and a payment of $400 for her cell phone bill the day after D. died. She had no right to use the card after he died. Those amounts would have to be repaid. As for the car, the evidence did not prove it was a gift. The medical evidence showed that D. was in a mental state in which he was capable of making financial decisions such as that. The car was an estate asset. As for the truck, even if D. said, “when I die, this is to be yours”, the declaration meant nothing if it was not bequeathed in the will. R. had no right as then executor of D.’s estate to effect a transfer of the truck. It would have to be transferred back to the estate. Finally, there was evidence that D. had sold the backhoe for $6,000; that transaction would not be disturbed.

Daugherty Estate v. Roberts, S.C., Melnick J., Doc. 2009 BCSC 1026, Golden 3907, July 28, 2009, 10pp. [CLE No. 43354] • Maggie Balfour , for plaintiff; Bruce L. McKenzie, for defendants.

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MENTAL INCOMPETENCE — Committees — Removal — Mother and one sister of profoundly-disabled 43-year-old patient initially appointed as his committees in 1998 — Patient’s second sister later replacing his mother — Difficulties between the sisters and their negative effect on patient causing both sisters to seek orders changing committees — Chambers judge ordering removal of both sisters, and appointing aunt as sole committee — Appeal court finding that appointment was made without giving due consideration to appointment of patient’s brother, who had also been put forward as a candidate — Court remitting matter to Supreme Court for matter to be considered afresh.

Gibson Estate, Re, C.A., Newbury, Mackenzie & Saunders JJ.A., Doc. 2009 BCCA 347, Vancouver CA036423, August 4, 2009, 16pp. [CLE No. 43385] • Appeal from judgment of Preston J., 2008 BCSC 1099, digested at [2008] C.D.C. 40901 (CLE) • Dale G. Sanderson, Q.C., for appellant defendants; Patricia E. Lebedovich, for respondent plaintiffs.

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WILLS — Variation — Spouses — Plaintiff and testator marrying in 1985, when both age 67 — Parties signing marriage agreement providing for separate property regime, later varying that agreement to provide for ownership as joint tenants of family home for which testator provided all the purchase monies — In his 2005 will, testator leaving nothing to plaintiff, given the agreement, and the plaintiff’s joint interest in the $700,000 family home and other property transferred to her — Testator unaware the plaintiff had severed the joint tenancy to ensure her daughters would receive an inheritance — Testator dying in 2007 — Court finding testator’s legal and moral obligation to plaintiff met — Plaintiff’s wills variation action dismissed.

The plaintiff and M., both then age 67, married in 1985 in Sweden. It was a second marriage for both. Two days before the marriage they entered into a written marriage agreement in which they agreed that all assets acquired by each of them before or after the marriage, as well as proceeds thereof, would remain the property of the acquirer with no right to the other party. They released each other from any claims against each other under the Family Relations Act and also from any claims against the estate of each other under the Estate Administration Act and under the Wills Variation Act, save for any testamentary disposition otherwise provided. A supplemental agreement made in 1988 declared that property purchased for $205,000 from funds provided solely by M. was being held in joint tenancy for the purpose of being their matrimonial home. M.’s last will, made in 2005, made no provision for the plaintiff nor her children, but left $50,000 to the plaintiff’s granddaughter, with the residue of his estate to go to his nephew and his wife and children. In a written statement accompanying the will M. explained that he did not provide for the plaintiff because he had transferred to her as joint owner the matrimonial home property valued at approximately $700,000, as well as his bank account in England valued at approximately £40,000, and their joint bank accounts valued at approximately $20,000. The plaintiff said she became aware in 2005 that M. was changing his will and was not making any provision for her or her children. She became concerned that her children would not get any inheritance from her if she predeceased M. and therefore severed the joint tenancy on the matrimonial home by transferring her joint interest into the joint names of two of her daughters and herself. The plaintiff deposed that at the trial date she was 91 years of age and in poor health. She said she had $334,000 of capital representing half of the net sale proceeds of the family home and approximately $63,000 in an investment account and an RIF with a balance of approximately $33,000. She said her gross monthly income from pensions was approximately $3,655 while her monthly expenses were approximately $5,139. She sought variation of the will. HELD, action dismissed. The initial marriage agreement met the requirements of a marriage agreement under the Family Relations Act at that time. The agreement changed over time to give the plaintiff some rights to M.’s property in that it gave the plaintiff a joint interest in the family home funded solely by M. initially. M. met his legal and moral obligations to the plaintiff in his will through the marriage agreement and his reasons given involving the transfers to the plaintiff. If the plaintiff had maintained her joint interest in the family home, she would have received his joint interest automatically on his death. However, she severed the joint tenancy, so she did not. It was not shown that M. was ever aware of that severance.

Martinson v. Martinson Estate, S.C., Truscott J., Doc. 2009 BCSC 1104, Victoria S081008, August 13, 2009, 13pp. [CLE No. 43460] • Fiona Hunter, for plaintiff; Nav Parhar, for defendants.

Case authorities: Kelly v. Baker, [1996] Civ. L.D. 672; [1996] Est. L.D. 34; [1996] C.D.C. 7523 (CLE) (B.C.C.A.) — considered. Steernberg v. Steernberg, [2006] C.D.C. 36370 (CLE), 2006 BCSC 1672 — applied. Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, 116 D.L.R. (4th) 193, 93 B.C.L.R. (2d) 145 — applied.

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WILLS — Variation — Children — Testator dying in 2006 at age 91, leaving 57-year-old wife and 2 teenage sons — Testator transferring $1 million family home to his wife shortly before death and leaving her his gross estate, worth some $1.8 million — Testator’s independent adult daughters from his first marriage making wills variation claim — Court finding testator having substantial legal and moral obligations to his wife and minor children and only a limited moral obligation to plaintiff and her sister — Court ordering variation of will to give $75,000 to each.

The testator B. and his first wife had two daughters, the plaintiff and the defendant J. His first wife died in 1985. B., then age 70, married the defendant E., age 37, soon thereafter. B. and E. had two sons, age 15 and 17 at the date of B.’s death in 2006. Shortly before he died, B. transferred title to the family home, worth about $1 million, to E. Her other assets included a lot in her own name, worth about $600,000 and a 50 percent interest in the home of her parents, worth about $1 million. E. also had some income from working part-time as a lawyer. At the time of B.’s death, the assets comprising the estate consisted of an apartment building with an assessed value of $1,348,000; three rental townhouses with a combined assessed value of $377,400; personal property, including an investment account, in the amount of $168,118. Debts and liabilities totalled $25,156. Thus before taxes, capital gains, and professional fees, the gross value of the estate was $1,868,362. The plaintiff was 63 years old at the trial date. She had retired from teaching and she and her husband owned their own home, worth about $560,000. They lived comfortably. Her sister J., age 66, lived in San Diego. She was divorced, and there was little evidence as to her circumstances, but she claimed to be in need. The plaintiff brought an action seeking variation of the will, asking for an award of $250,000. J. supported the application, seeking $450,000 for herself. HELD, plaintiff and J. each awarded $75,000. B. had legal obligations to his wife and to his dependent children at the date of his death. He also had moral obligations to his wife, his dependent children, and his older independent children. With respect to his wife, E., the marriage was a lengthy one. It was also a marriage in which there was a substantial age difference. From the beginning of their relationship, B. encouraged E. to work part-time. He was semi-retired in 1985 when they married, and retired fully in 1989. During the marriage, E. continued to work part-time, and contributed to the ongoing expenses of the family and to the maintenance of B.’s assets. She contributed to the maintenance and upkeep of both the matrimonial home and the apartment. She also cared for B. during his later years, keeping him at home until just before his death. Apparently, it was B. who wanted to have children. The boys were born when he was 74 and 76. E. was concerned about their age difference and how she would manage as a single parent when he died. In reliance on B.’s assurances that their combined assets would be sufficient to support her after he died, E. did not pursue a legal career on a full-time basis during their relationship. Accordingly, B. had a legal obligation to E. of the highest order. He also owed a legal obligation to his sons, who were both minors at the time of his death. He had a legal obligation to provide maintenance for them. It was also relevant that B. had paid for the plaintiff’s post secondary education, that he gave her $25,000 when she bought a house in 1986, and that he gave her sister $16,000 for that purpose in 1977. In additional to his legal obligation, B. had heavy moral obligations to his wife and sons. Although he had a moral obligation to his adult independent children, the claim of an adult independent child is always more tenuous than the claim of a spouse or a dependent child. Here, neither daughter had a significant claim. The plaintiff was not in need and, while her sister alleged need, she failed to provide supporting evidence. She did not provide her income tax returns, any specific evidence regarding the value of her property in San Diego, or evidence that alleged health issues which would disable her from working. In the circumstances, including the fact that the estate appeared to have a net value of about $1.26 million after taxes, the will would be varied to provide $75,000 to each daughter.

Waldman v. Blumes Estate, S.C., Gerow J., Doc. 2009 BCSC 1012, Vancouver S070070, July 27, 2009, 24pp. [CLE No. 43342] • Alan E. Farber, for plaintiff; Amy A. Mortimore, for defendant wife and executrix; Angela E. Thiele, for defendant daughter; Amy Francis, for defendant infant sons.

Principal case authorities: Clucas v. Clucas Estate, [1999] Civ. L.D. 201; [1999] Est. L.D. 15; [1999] C.D.C. 14935 (CLE) (B.C.S.C.) — applied. Handlen (Guardian ad litem of) v. Boose, [2001] C.D.C. 22397 (CLE), 2001 BCSC 1528 — applied. Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, 116 D.L.R. (4th) 193, 93 B.C.L.R. (2d) 145 — applied.

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