Hall v. Hall Estate, 2011 BCCA 354

• Judge: Neilson, Groberman and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 26, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 354;(2011), 309 B.C.A.C. 224 (CA)

Hall v. Hall Estate (2011), 309 B.C.A.C. 224 (CA);

    523 W.A.C. 224

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. AU.029

Roy Anthony Hall (appellant/plaintiff) v. Paul Stuart Hall, Executor of the Estate of Jean Hall, and the said Paul Stuart Hall (respondent/defendant)

(CA038102; 2011 BCCA 354)

Indexed As: Hall v. Hall Estate

British Columbia Court of Appeal

Neilson, Groberman and Bennett, JJ.A.

August 22, 2011.

Summary:

The appellant sought a variation, under the Wills Variation Act, of his mother's will, in which she disinherited him.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 528, dismissed the application. The appellant appealed.

The British Columbia Court of Appeal dismissed the appeal.

Family Law - Topic 6610

Dependents' relief legislation - Moral obligation of testator - General - The appellant sought a variation, under the Wills Variation Act, of his mother's will, in which she disinherited him - He asserted that a testator owed a moral obligation to an independent adult child and to disinherit such an offspring was an extreme measure - The mother gave three reasons for disinheriting the appellant: (1) his lengthy estrangement from her; (2) her view that he was capable of being financially independent; and (3) the comparative love and support she had received from Paul (the appellant's brother) and his family, whom she viewed as her "only family" - The trial judge found that the mother's testamentary autonomy trumped any moral obligation she owed to the appellant and dismissed the application - The British Columbia Court of Appeal affirmed the decision - The mother owed no legal duty to the appellant - Nor did the evidence reveal a moral obligation that entitled him to share in her estate - The trial judge made no error in finding her reasons for disposing of her estate in the manner she chose were not false or unwarranted, and that her will was entitled to deference - See paragraphs 36 to 49.

Family Law - Topic 6725

Dependents' relief legislation - Evidence - General - The appellant sought a variation, under the Wills Variation Act, of his mother's will, in which she disinherited him - The trial judge dismissed the application - The appellant appealed, asserting that the trial judge erred in dismissing his application to admit an affidavit sworn by his father that set out the financial and other support the appellant had provided for Paul (the appellant's brother), including a loan that Paul had not repaid - The affidavit also set out the father's displeasure that the mother had left Paul her entire estate - The appellant argued the trial judge should have admitted this affidavit because s. 5 of the Act permitted some latitude in accepting hearsay evidence that went to a testator's reasons for making the dispositions in a will, and for failing to make adequate provision for a spouse or child - He also said it was relevant to Paul's credibility and corroborated his own evidence - The British Columbia Court of Appeal dismissed the appeal - While it was true that s. 5 relaxed the usual evidentiary rules governing hearsay evidence when that evidence went to a testator's intent, that provision left this to the discretion of the court - The trial judge had justifiable concerns about the reliability of the affidavit, since the appellant had assisted in its preparation and the father had not consulted a solicitor - As well, the utility of the evidence was questionable since it spoke to the mother's state of mind prior to her estrangement from the father in the mid-1990's - It was reasonable to infer that subsequent events had altered her views - See paragraphs 29 to 31.

Family Law - Topic 6725

Dependents' relief legislation - Evidence - General - The appellant sought a variation, under the Wills Variation Act, of his mother's will, in which she disinherited him - The trial judge dismissed the application - The appellant appealed, asserting that the trial judge erred in allowing Paul's (the appellant's brother) application to admit a letter from the appellant's former wife to the mother - The letter stated that their marriage had ended because the appellant beat her - The trial judge admitted the letter, not for the proof of its contents, but because it contained material probative of the mother's state of mind - The British Columbia Court of Appeal dismissed the appeal - The trial judge did not err in exercising his discretion to admit the letter - It was a reasonable inference that the letter may have guided the mother's intentions in making her final will - She had kept it for 17 years and had discussed it with her granddaughter suggesting it had some significance for her - The trial judge recognized that whether its contents were true was irrelevant - Further, the trial judge did not rely on the letter in reaching his conclusions - He did not refer to it in his reasons, and instead gave significant weight to other factors in upholding the will, notably the appellant's periodic and lengthy estrangements from the mother, particularly during the last eight years of her life - See paragraphs 32 to 35.

Cases Noticed:

Landy v. Landy Estate (1991), 8 B.C.A.C. 130; 17 W.A.C. 130; 60 B.C.L.R.(2d) 282; 85 D.L.R.(4th) 1 (C.A.), refd to. [para. 24].

Price v. Lypchuk Estate (1987), 11 B.C.L.R.(2d) 371 (C.A.), refd to. [para. 26].

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, refd to. [para. 38].

Doucette v. Doucette Estate et al. (2009), 275 B.C.A.C. 226; 465 W.A.C. 226; 311 D.L.R.(4th) 410; 2009 BCCA 393, refd to. [para. 42].

Bell v. Roy Estate et al. (1993), 23 B.C.A.C. 146; 39 W.A.C. 146; 75 B.C.L.R.(2d) 213 (C.A.), refd to. [para. 43].

Kelly v. Baker et al. (1996), 82 B.C.A.C. 150; 133 W.A.C. 150 (C.A.), refd to. [para. 43].

Counsel:

E. Chesterley, for the appellant;

P. Freeman, Q.C., for the respondent.

This appeal was heard on April 26, 2011, at Vancouver, British Columbia, by Neilson, Groberman and Bennett, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Neilson, J.A., on August 22, 2011.