Tomlyn v. Kennedy

I have just finished reading a very sad and tragic Wills Variation Act case released last week.

Pauline Herchenson had three children. The Government of Alberta took all three children away from her when they were babies in 1945. She had no contact with them after that. She did not know what became of her children.

She later married, but did not have any more children.

Ms. Herchenson did not forget her children. In her will, made many years later, she made an interesting provision. She left the residue of her estate, after payment of a number of specific bequests, to her three children if the executor could find them within a year of her death. She directed the executor to make reasonable efforts to locate them. If any had died before her, the deceased child’s gift would go to his or her own children.

Ms. Herchenson died in 2003, as a resident of British Columbia.

The executor did locate the children. One child had been adopted, and died before Ms. Herchenson. He had four children who were entitled to his share under the will. The other two children had not been adopted, and were both alive.

Although Ms. Herchenson made some provision for her children in her will, she also left a significant amount to various other relatives, friends and a charity. The effect was that out of an estate of about $680,000 at trial, after payment of taxes and other expenses and the gifts to the other beneficiaries, there would be about $230,000 left for the two living children and the four children of the deceased child.

One child, Michael Jon Tomlyn, brought a claim for a greater share of the estate under British Columbia’s Wills Variation Act, R.S.B.C. 1996, c. 490, alleging that his mother had not made adequate provision for him. He argued that she had failed in her moral obligations to him.

After he was taken from his mother, Michael Tomlyn was in foster care until eight years of age. The Alberta Government then labelled him as mentally defective (there is no indication in the judgment that the label was in any way valid), had him sterilized at 12, and kept him in a provincial training school until he was 26.

At the time of trial he was in his 60s. He was married. He had no significant assets and was unemployable.

His brother was also in his 60s, married, and had a modest income.

When this case went to a summary trial, one of the beneficiaries argued that the moral claim of the two living children was “neither strong nor compelling.” Mr. Justice Brooke in Tomlyn v. Kennedy, 2008 BCSC 331, disagreed.

In reaching his decision Mr. Justice Brooke eloquently discussed the nature of a parent’s moral obligation to a child, and how it was not met in this case, at paragraphs 29 and 30 as follows:

The moral obligation of a testator to a child must be seen as commencing when the child is born. The law of nature leaves each child utterly dependent upon his or her mother during infancy and, by extension, to childhood and later years a diminishing dependency. The testatrix failed her children terribly. We do not know her circumstances or the reasons for that failure, but we are left with the fact that the care of the children was placed with the apparatus of the state. We know nothing of the testatrix’s conduct while the children were in her care, but we do know the sad history that unfolded after they were apprehended by the Ministry. While such a challenging beginning does not invariably lead to a blighted life, that does seem to have been the lot of the children of the testatrix. The plaintiff was placed in foster care until he was placed involuntarily in an institution, where he was sterilized, and from which he escaped by marrying. He neither had the comfort and support of a mother or brothers but was left to his own slim resources to make his way in a competitive and sometimes cold and hostile world. He was even denied the joys and the comfort of children of his own. He now finds himself one of life’s wounded.

His brother, Francis, did not suffer incarceration and involuntary sterilization but he, too, grew up without parents, without siblings and without an extended family – all of which may be expected to provide affection, support and encouragement, not only during childhood but throughout his life. He, too, finds himself much, much wounded by his beginnings.

Mr. Justice Brooke increased the provision for plaintiff, Michael Tomlyn to $175,000 and for his brother Francis Tomlyn to $125,000.