Sunday, October 06, 2013

Moore v. Drummond (No. 2)

Sometimes a child or spouse alleges that a will is invalid, and also makes a claim under the Wills Variation Act. The claims are quite different. In British Columbia, the court may find that a will is validly made, signed and witnessed in accordance with the formal requirements of the Wills Act, by a person with the mental capacity to make the will and who understood and approved of the contents of the will, but still vary the will under the Wills Variation Act because the maker did not make adequate provision for her spouse or her children.

This point is illustrated by the recent case of Moore v. Drummond, 2013 BCSC 1762.

Dorothy (“Dee”) Drummond was 97 when she made her will leaving all of her wealth to her two neighbours Kenneth Moore and Clara Moore, disinheriting her son, Bruce Drummond. Her estate was relatively modest, and consisted of her house with an assessed value of $110, 700, and bank accounts of about $55,000 at her death.

In her will, she set out her reasons for making the provisions she did:

7. My reasons for providing for my neighbours, CASEY MOORE and CLARA MOORE are because they have been a lot of help to me and have become my good friends over many years. 
 8. I have not given any part of my estate to my son, Bruce Drummond, because he does not visit me and he does not need anything from me. Bruce is retired and I believe he made good money as a logger.

Bruce Drummond challenged her will on the grounds that she did not have capacity to make a will, but also brought a claim under the Wills Variation Act.

There was evidence that Ms. Drummond had diminished capacity in that near the time she made the will, her physician expressed an opinion that she was not capable of managing her affairs. But as I wrote in a previouspost, the court found that she did have the necessary capacity to make a will, and understood and approved of the contents of her will.

Mr. Drummond was more successful in his application under the Wills Variation Act claim.

Bruce Drummond was raised primarily by his grandmother and great grandmother and did not live full time with his mother until he was 12. As an adult he generally visited his mother annually, but they had a distant relationship.

Mr. Drummond was 77 at the time of trial. He was retired and living off of a modest pension. He testified that he had made average wages for a logger.

Mr. Justice Nathan Smith found that Ms. Drummond had a moral obligation to make some provision for her son, and that the reasons she gave for disinheriting were not rational and valid. Mr. Justice Smith wrote:

[19]         However one interprets the test to be applied, I am bound to find on the basis of the authorities that the reasons stated in the will were insufficient to displace the moral obligation. The statement that Bruce never visited was factually incorrect. The statement that he did not need anything from her was based on an assumption unsupported by any specific knowledge. Dee knew nothing about Bruce’s income, other than the fact he had worked as a logger, and knew nothing about his financial circumstances in retirement. Bruce testified that they never discussed these matters and I find that, given her attitude toward him, Dee was unlikely to have been interested.
 [20]         Tataryn and other case law makes clear that “society’s reasonable expectations” require a testator to consider adult independent children. Although a testator may in some circumstances reasonably exclude such a child based on the child’s financial circumstances and absence of need, the reasonable expectation is that a prudent testator would only do so on the basis of actual knowledge rather than speculation.
 [21]         For these reasons, I find that Dee’s will failed to meet her moral obligations and therefore fell short of the “adequate provision” required by s. 2(1) of the Act.

Balancing Ms. Drummond’s moral obligations to her son, with the competing principle that a will-maker should have autonomy to dispose of property in accordance with her wishes, Mr. Justice Smith awarded Bruce Drummond one-half the value of the residue of the estate, with the other half going to Mr. and Mrs. Moore.

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