Tracy Taylor lived in a common law relationship with Robert Miller for about 9 years. She did not know before his tragic death on July 10, 2006, that he had a young son, not quite three at his death.
Mr. Miller knew of his son, but never met him. He had seen pictures of his son, and spoke proudly of him to some friends. He also sent some money and gifts for his son.
Mr. Miller appointed Ms. Taylor his executor in his will, and left to her his entire estate, which was worth approximately $400,000. Ms. Taylor also received his interest in their home by right-of-survivorship, which is not included in Mr. Miller’s estate.
The Public Guardian and Trustee of British Columbia brought a claim in the Supreme Court of British Columbia under the Wills Variation Act on behalf of Mr. Miller’s son. The Wills Variation Act allows the court to vary a will in British Columbia, if the will did not include adequate provision for a spouse or child. There are surprising few reported cases concerning Wills Variation Act claims of minor children.
In reasons for judgment released last week, in K.D.M.B. v. Taylor, 2008 BCSC 1498, Madam Justice Gill considered Mr. Miller’s legal and moral obligations to both his son and Ms. Taylor.
Ms. Taylor argued that Mr. Miller had legal obligations to her because she contributed to the value of his estate, assisting him in buying and renovating homes for rental and resale. She argued that Mr. Miller’s legal obligation to his son was limited to child support, which would have amounted to about $45,000 until the child attained the age of 19 based on the Child Support Guidelines. She argued that Mr. Miller’s moral obligation to his son was tenuous in light of the fact that they didn’t have a relationship. Her position at trial was that Mr. Miller’s son should receive 25% of the estate.
The Public Guardian and Trustee, on the other hand, argued that Ms. Taylor had net assets of approximately $1,000,000 derived largely from her relationship to Mr. Miller. The Public Guardian and Trustee asked for an award of 90% of the estate.
Madam Justice Gill found that Ms. Taylor had made some contributions to the family’s wealth, but that Mr. Miller made greater financial contributions. She expressed concerns that Mr. Miller’s tax returns did not fully reflect his income, and that Ms. Taylor’s calculations of child support were, accordingly, not helpful. She also rejected the argument that Mr. Miller did not have any moral obligations to his son.
The court awarded Mr. Miller’s son 65% of the estate. These funds will be held in trust by the Public Guardian and Trustee of British Columbia until he attains the age of 19.