Tuesday, September 28, 2010

Hutchison v. Weidman Estate

In British Columbia, the Wills Variation Act allows a child to apply to court to vary his or her parent's will if the parent did not make adequate provision for the child in the will. This does not mean that parents have to treat their children equally. The judge hearing the case may consider the parent’s reasons for favouring one child over others. If a child has greater need than the others, a parent may have good reason to leave a larger share to that child.

A recent case, Hutchison v. Weidman Estate, 2010 BCSC 1356, illustrates this point.

In his will, Bernard Walter Weidman left his entire estate, worth a little over $1 million to his daughter Sharon Weidman. He had three other children, but did not leave anything to them. He died in January 2007.

One of the other children, his daughter Cheryl Hutchison, brought a claim under the Wills Variation Act to vary her father’s will. She was a registered nurse, but has some health problems, and has been out of work. She owns her own home worth about $700,000, and has built up a registered retirement savings plan. She is 53.

Sharon Weidman has had significant health problems throughout her life, including epileptic seizures. She has cognitive difficulties, and has held low paying jobs. She was unemployed when the case came to trial. She owns her own apartment, in an older building, that may have a major roof problem. The court heard medical, vocational and actuarial expert evidence, indicating that she was severely limited in her employment prospects, and may require expensive care in the future. She is 51.

Neither of the other two children made any claim to a share of their father’s estate. One of them, Carol Cunniff, gave evidence in support of Sharon Weidman.

Cheryl Hutchison’s position at trial was that she should be awarded 45 % of the estate, with 55% left to Ms. Weidman.

Mr. Justice Williams held that Bernard Weidman had a moral obligation to make provision in his will to the plaintiff, Cheryl Hutchison. But Mr. Justice Williams also balanced that moral obligation with Bernard Weidman’s moral obligation to Sharon Weidman, and Mr. Weidman’s reasons for leaving his estate to her. Mr. Justice Williams found that Mr. Weidman’s reason for leaving his estate to only one child was his concern about her circumstances.

Mr. Justice Williams compared Sharon Weidman’s circumstances to those of the plaintiff:

[90] Earlier in these reasons, I made reference to Sharon Weidman’s circumstances with respect to her income and assets. In a nutshell, she is unemployed and effectively unemployable. Her home could hardly be described as adequate; in fact, her lifestyle is anything but that. On all of the evidence, I am quite satisfied that her situation is decidedly and distressingly substandard.

[91] Evidence has been filed on behalf of the defendant, setting out an actuarial assessment of the present cost of the future care requirements that have been identified for Sharon Weidman. The actuary has provided a present value for these three different categories of needs which were identified in the report of Ms. Quastel. He estimates that, for all the present and ongoing needs, the value is in the order of $144,400. As for the other three categories of costs, that is, where homemaker service might be required and where assisted living would be required (contingent costs). He estimates the current value of those costs to range between $625,211.82 and $1,472,201.

[92] In my view, the needs of Sharon Weidman are substantial and compelling. There is no doubt that she is a person who is dealing with a constellation of challenges, difficulties and limitations. I accept the evidence which has been adduced as to her circumstances. In my view, the concerns that the testator recognized many years ago have not in any way abated. She is a person of substantial need.

[93] The circumstances of the plaintiff are quite different. I accept on the evidence that she will experience some difficulty from a vocational perspective going forward and that she will not be able to earn a robust income into the future. At the same time, she has advantages which place her in a vastly different situation than that of the defendant Sharon Weidman. I have averted to those earlier.

Mr. Justice Williams awarded Cheryl Hutchison $75,000. The balance of the estate will go to Sharon Weidman.

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