Werbenuk v. Werbenuk Estate

My partner Keith Sabey had the privilege of representing Virginia Derksen, one of the successful parties in the case of Werbenuk v. Werbenuk Estate, 2010 BCSC 1678, which is a Supreme Court of British Columbia judgment released on November 29, 2010.

Mrs. Derksen is the eldest of William Werbenuk’s five children. When she was a young child, her parent’s marriage broke down, and her father abandoned her. He had no contact with her between from when she was 4 until she was 14. He did not obey a court order requiring him to pay child support for her. When she was 15, she approached him and asked for $50 to enter a pageant. He refused.

Mr. Werbenuk remarried and had three daughters, Carrie Werbenuk, Lorraine Werbenuk and Patricia Skwarok, and a son, Randall Werbenuk, with his second wife. Mrs. Derksen wanted to have a relationship with her siblings, but her father discouraged them.

Mrs. Derksen continued in later years to try to have a relationship with her father, and eventually was able to establish some contact with him.

William Werbenuk similarly mistreated his other three daughters. Mr. Justice Wong found the following facts in his reasons for judgment:

[12] The evidence of all of the daughters indicate that their father was a hard and rigid man who ruled his family, and especially the women, with an iron fist. He was a racist whose will and personality dominated his family. He was self absorbed and ordered his wife and daughters about as if they were brought into being merely to satisfy his needs, without regard to their emotional well being. Their evidence provides stark testament to the fact that the father, on frequent occasions, resorted to and engaged in harsh and brutal corporal and other punishments. He ruled those who lived with him and those who incurred his wrath by predictable resort to violence and the threat of violence. The father emotionally abused his wife and daughters on a regular basis and engaged in regular assaults upon their bodies as a form of punishment and, ultimately, as a form of ruling by terror.

[13] The most demeaning form of punishment engaged in by the father on a regular basis was his direction to all of his children, with the exception of Randall, to wash his feet.

When Mr. Werbenuk made his will on March 8, 2006, he left his entire estate to his son, Randall Werbenuk. After William Werbenuk died, Randall Werbenuk as the executor of his father’s will filled an inventory of the estate assets indicating that the gross value of the estate was approximately $434,000. But Mr. Justice Wong found that Randall Werbenuk did not include significant estate assets in the inventory, and the estate is worth more.

William Werbenuk’s three daughters from his second marriage brought a claim under the Wills Variation Act, asking the court to vary their father’s will on the basis that it did not make adequate provision for them. They requested the court to vary the will to make a provision that was just, adequate and equitable.

Because Mrs. Derksen was also entitled to apply, they named her as a defendant in the suit, and she retained Mr. Sabey to represent her.

Mr. Justice Wong varied the will. He held that William Werbenuk had a moral obligation to each of his daughters, which he, Mr. Werbenuk, failed to meet. He found that the three daughters from William Werbenuk’s second marriage had a closer relationship than Mrs. Derksen with their father. He also found that they had greater financial needs. Mr. Justice Wong varied the will to provide Carrie Werbenuk with 23 percent of the estate, Lorraine Werbenuk with 22 percent of the estate, Patricia Skwarok with 20 percent of the estate, Randall Werbenuk with 20 percent of the estate, and Virginia Derksen 15 percent of the estate.

One of the things I find most interesting about this case is the reaction. Very few Wills Variation Act cases get reported in the press, but this case has been covered by media across Canada, including the Vancouver Sun, The Globe and Mail, and the CBC. This afternoon, Keith Sabey was interviewed for a radio show in Toronto. The interviewer seemed shocked that the court could vary the will. Indeed, from reading some comments in the web versions of the press, many people find this decision surprising.

The decision is consistent with the legislation, which expressly provides that a court may vary a will if the maker has not made adequate provision for his or her spouse or children. The facts of this case are remarkable in the egregious conduct by William Werbenuk toward his daughters. But the result is consistent with the principles the courts have developed over decades since the legislation, then called the Testator's Family Maintenance Act, was passed by the British Columbia Legislative Assembly in 1920.

The court will view the will from the perspective of a judicious father, in accordance with contemporary standards. In this case, Mr. Justice Wong found that William Werbenuk fell short of that standard, and the court varied the will substantially. In other cases, the courts have refused to vary wills where parents had rational and valid reasons for leaving children little, or even disinheriting them.

In fairness to the radio interviewer in Toronto, Ontario's legislation is different, each province having its own laws governing wills. But it is interesting to see how surprised some of the media are by the decision.

I am pleased to see the interest in the area of law we practice, and the debate this decision has generated.