One of the factors the Supreme Court of British Columbia may consider in a claim by a child to vary her parent's will is whether the parent has made other provision for her during the parent’s life.
In a recent case, Gould v. Royal Trust Corp. of Canada, 2009 BCSC 1528, Mr. Justice Pearlman refused to vary Silvia Gould’s will even though she made little provision in her will for her daughter, Barbara Gould.
In her will, Silvia Gould left some silver, jewelry, paintings and personal effects to her daughter, but left the residue of her estate, worth a net amount of approximately $900,000, to her three sons. She provided her reasons for not leaving anything in her will to her daughter. She and her daughter were at the time she made the will, joint tenants on a recreational property in Ontario. Barbara Gould would receive the property by right-of-survivorship on Silvia Gould’s death. Silvia Gould wrote in her will that Barbara Gould would receive a roughly equal inheritance to each of her brothers.
Before Silvia Gould died she had transferred her interest in the vacation property to her daughter as a gift. At trial the property was worth $210,000 according to an appraisal.
Mr. Justice Pearlman held that Silvia Gould’s reasons for leaving the residue of her estate to her three sons—that her daughter would receive the vacation property—were rational and valid. In light of the gift of the vacation property to her daughter, Silvia Gould’s dispositions in her will “falls within the range of acceptable dispositions made by a judicious parent in the fulfillment of her moral obligation to the plaintiff as one of the four adult children.” Mr. Justice Pearlman then wrote: “Because I am satisfied that the testatrix [Silvia Gould] made just, adequate and equitable provision for the plaintiff and met her moral claim, the testamentary autonomy of the testatrix is entitled to deference.”
Barbara Gould was, however, entitled to an award of $75,000 for her expenses and the care she provided her mother during the last few years of her mother’s life. Mr. Justice Pearlman awarded the $75,000 for unjust enrichment.
Silvia Gould’s three sons opposed the claim for unjust enrichment in part because Barbara Gould had removed their mother from British Columbia to Guatemala at a time when their mother had dementia, and did not have capacity to consent. She did so without telling her brothers, and despite the fact that her mother had made one of her brothers her representative under a representation agreement.
Although Mr. Justice Pearlman was critical of Barbara Gould’s conduct, he found that she did spend funds on her mother, and took good care of her. She had a reasonable expectation that her mother’s resources would be used for her expenses. Her mother would have had to incur similar expenses if she had remained in British Columbia.
Accordingly Mr. Justice Pearlman found that Barbara Gould had met the criteria for proving unjust enrichment.
[Since I wrote this post, the British Columbia Court of Appeal dismissed Barbara Gould's appeal. See my update here.]