Tuesday, March 18, 2008

Crowley v. Walkhouse

In British Columbia, if a parent does not make adequate provision in her will for an adult child, the child may sue under the Wills Variation Act. If successful, the court will make an award that the court considers adequate, just and equitable in the circumstances. Will the court award an adult child who is completely disinherited with a larger share of the estate than it would if the same child’s parent had left him a modest portion of her estate?

In Crowley v. Walkhouse, 2008 BCSC 319, Lillian Crowley left her only child, Barry Crowley, a quarter of her $1 million estate in her will. She left a quarter to her granddaughter, and one tenth of her estate to each of her church, a niece, two nephews and a sister-in-law.

Her son made a Wills Variation Act claim, seeking 50 to 60 percent of the estate. He was 70 years old, retired and financially self-sufficient.

Barry Crowley and his mother were estranged, not having any contact during the last ten years of her life. He had left home at 15, been in prison, and rejected his mother’s religion. They had a final falling out when his mother sold his father’s tools, after his father’s death, instead of giving the plaintiff the tools.

The plaintiff son argued that his mother had a moral obligation to provide him with a greater share of his estate. He referred to another case, Baulne v. Burtch (19 December 2002) Kelowna Registry no. 56281 (BCSC), in which the court awarded an independent adult son who had been estranged from his parents 60 percent of his parents’ estates. The combined value of the estates in Baulne was about $500,000.

Mr. Justice Rogers distinguished the Baulne case principally on the basis that in Baulne the plaintiff son’s parents had completely disinherited him. The court, having found that the parents had not made adequate provision for the son, then had to decide on an appropriate percentage.

In contrast, in Crowley, the plaintiff’s mother had left a quarter of her estate to her son. The issue then was whether that quarter falls within an acceptable range. Mr. Justice Rogers wrote,

The most salient point of departure between the two cases is that, in Baulne, the court was not faced with having to decide whether the gift that was, in fact, given to the plaintiff lay within that “range of options” that the Supreme Court in Tataryn allowed could be appropriate. Instead, Beames J. had to act as the testator herself; she had to pick a percentage of participation out of the range of percentages that were available to choose from. Beames J. did not say, and was not obliged to say, whether the number she chose was at the top, middle or bottom of the range.
Mr. Justice Rogers found that a quarter of the estate was in the low end of the acceptable range. He wrote:

Turning again to Tataryn, I must ask myself what range of gifts to the plaintiff could satisfy society’s reasonable expectations of what a judicious person would do in Mrs. Crowley’s place? Would a one-quarter share of $1 million be enough to meet those expectations? Put another way, would a $250,000 to a 70-year-old man, who owns clear title to three properties and has modest savings, a modest lifestyle that is in keeping with the modest lifestyle his parents followed, and an income sufficient to met his needs, and in whom the testator was, with good reason, disappointed, offend the sensibilities of an impartial observer? The answer to that question must, in my opinion, be no. That gift is, I think, at the low end of the acceptable range, but it is within the range and it should not be disturbed.
The implication is that if Mr. Crowley’s mother had disinherited him, or left him with significantly less than a quarter of her estate, the court might have awarded him more than a quarter of the estate.

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