Erlichman v. Erlichman Estate, 2002 BCCA 160

• Judge: Braidwood, Saunders and Levine, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 24, 2002
• Jurisdiction: British Columbia
• Citations: 2002 BCCA 160;(2002), 165 B.C.A.C. 115 (CA)

Erlichman v. Erlichman Estate (2002), 165 B.C.A.C. 115 (CA);

    270 W.A.C. 115

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. MR.058

Rose Erlichman (plaintiff/appellant) v. Harry Erlichman and Rose Erlichman, Executors of the Will of Abraham Erlichman, Deceased, Harry Erlichman, Dovid Erlichman, Joseph Erlichman, Sydney Erlichman, Yaakov Erlichman, Rachel Erlichman by her guardian ad litem Ruth Erlichman, Ariel Erlichman by his guardian ad litem Ruth Erlichman, Jonah Erlichman by his guardian ad litem Ruth Erlichman, Ruth Erlichman as the guardian ad litem of the unborn children of Sydney Erlichman (defendants/respondents)

(CA028074; 2002 BCCA 160)

Indexed As: Erlichman v. Erlichman Estate

British Columbia Court of Appeal

Braidwood, Saunders and Levine, JJ.A.

March 6, 2002.

Summary:

A widow brought an action under the Wills Variation Act for a greater share of her late husband's estate. Alternatively, the claim was based on constructive trust and unjust enrichment.

The British Columbia Supreme Court, in a decision reported at [2000] B.C.T.C. 938, dismissed the action. The widow appealed.

The British Columbia Court of Appeal, Braidwood, J.A., dissenting, allowed the appeal.

Editor's Note: See also a related case at [2000] B.C.T.C. Uned. 60.

Family Law - Topic 6602

Dependents' relief legislation - General principles - Share or entitlement of wife - A testator's 1988 will divided his estate equally between his wife of then 43 years and his son - In 1998, less than three months before his death, the testator's new will left his wife only a life estate in half the estate's income - The wife, then 77, had little or no experience with large sums of money (although her general compe­tence was not challenged), and no capital assets - The estate had a gross value of $2 mil­lion, most­ly invested in term securities - The British Columbia Court of Appeal held that the trial judge, who upheld the will, gave insufficient weight to the testa­tor's legal and moral obligations to his wife - The court awarded her one-half the residue - See paragraphs 38 to 55.

Family Law - Topic 6610

Dependents' relief legislation - General principles - Moral obligation of testator - General - [See Family Law - Topic 6602 ].

Family Law - Topic 6666

Dependents' relief legislation - Entitlement - Existence of moral duty - [See Family Law - Topic 6602 ].

Family Law - Topic 6682

Dependents' relief legislation - Consider­ations in making awards - Moral duty of testator - [See Family Law - Topic 6602 ].

Family Law - Topic 6682.1

Dependents' relief legislation - Consider­ations in making awards - Legal obliga­tions of testator - [See Family Law - Topic 6602 ].

Cases Noticed:

Tataryn et al. v. Tataryn Estate, [1994] 2 S.C.R. 807; 169 N.R. 60; 46 B.C.A.C. 255; 75 W.A.C. 255; [1994] 7 W.W.R. 609, consd. [para. 17].

Crerar v. Crerar Estate (1998), 111 B.C.A.C. 194; 181 W.A.C. 194; 61 B.C.L.R.(3d) 55 (C.A.), consd. [para. 17].

Glanville v. Glanville Estate (1998), 117 B.C.A.C. 80; 191 W.A.C. 80; 58 B.C.L.R.(3d) 240; 25 E.T.R.(2d) 258 (C.A.), consd. [para. 19].

Hoskins, Re (1961), 35 W.W.R.(N.S.) 430 (B.C.S.C.), consd. [para. 25].

Sawchuk v. MacKenzie Estate et al. (2000), 132 B.C.A.C. 171; 215 W.A.C. 171; 72 B.C.L.R.(3d) 333 (C.A.), refd to. [para. 31].

Walker v. McDermott, [1930] S.C.R. 94, refd to. [para. 31].

Counsel:

J. Doulis, for the appellant;

J.G. Carphin, for the respondents.

This appeal was heard before Braidwood, Saunders and Levine, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on January 24, 2002. The decision of the court was delivered on March 6, 2002, when the following opinions were filed:

Braidwood, J.A., dissenting - see para­grap­hs 1 to 37;

Saunders, J.A. (Levine, J.A., concurring) - see paragraphs 38 to 55.