Hall v. Hall Estate et al., 2011 BCCA 355

• Judge: Neilson, Groberman and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 26, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 355;(2011), 309 B.C.A.C. 233 (CA)

Hall v. Hall Estate (2011), 309 B.C.A.C. 233 (CA);

    523 W.A.C. 233

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. AU.030

Roy Anthony Hall (respondent/plaintiff) v. Rose Frances Korejwo (appellant/defendant) and James Edward Dow, Executor of the Estate of Roy Hall (respondent/defendant)

(CA038092)

Roy Anthony Hall (appellant/plaintiff) v. James Edward Dow, Executor of the Estate of Roy Hall, and Rose Frances Korejwo (respondents/defendants)

(CA038100; 2011 BCCA 355)

Indexed As: Hall v. Hall Estate et al.

British Columbia Court of Appeal

Neilson, Groberman and Bennett, JJ.A.

August 22, 2011.

Summary:

The deceased (Roy) left an estate of some $438,000. In his will, Roy made bequests of $43,000 to relatives, a bequest of $10,000 and a 1999 Oldsmobile to his adult son (Tony), and left the balance of his estate to his common law spouse (Korejwo). Tony brought an action under s. 2 of the Wills Variation Act.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 529, decided a variation of Roy's will was appropriate. He replaced the bequest to Tony with a payment of $20,000, and limited the bequest to Korejwo to a life interest in the balance of the estate. Tony and Korejwo both appealed.

The British Columbia Court of Appeal allowed both appeals. The disposition that best honoured the two objectives of the Act was a reversion to the original will, with an increase in the bequest to Tony to $60,000.

Family Law - Topic 6603

Dependents' relief legislation - General principles - What constitutes "adequate, just and equitable" - A trial judge varied a deceased's will under s. 2 of the Wills Variation Act - Both the adult son and the deceased's common law wife appealed - At issue was whether the variation failed to provide an adequate, just and equitable result as required by s. 2 - The British Columbia Court of Appeal stated that an application under s. 2 was a two-stage process - "First, the court must determine whether adequate provision has been made for the proper maintenance and support of the applicant. If not, at the second stage the court must consider what provision would be adequate, just and equitable" - The parties' dissatisfaction lay with the trial judge's assessment at the second stage of the inquiry - The court discussed the principles that guided that inquiry - In the end result, the court allowed both appeals - See paragraphs 32 to 36 .

Family Law - Topic 6603

Dependents' relief legislation - General principles - What constitutes "adequate, just and equitable" - A trial judge varied the deceased's will under s. 2 of the Wills Variation Act (WVA) - He limited the bequest to the deceased's common law spouse to a life interest in the balance of the estate - The spouse appealed - As to the deceased's moral obligation, she argued that, as a minimum, her share should be equivalent to what a spouse would receive under s. 85 of the Estate Administration Act (EAA) - The British Columbia Court of Appeal was not persuaded that s. 85 of the EAA had any direct role to play in considering what was adequate, just, and equitable under s. 2 of the WVA - On an accurate interpretation of the case law, the EAA represented a default position where there was no will and the deceased's wishes were unknown - The EAA simply provided some indication of contemporary standards - See paragraphs 44 to 46.

Family Law - Topic 6638

Dependents' relief legislation - Persons entitled to relief - Child - Adult children - [See second Family Law - Topic 6701 ].

Family Law - Topic 6666

Dependents' relief legislation - Entitlement - Existence of moral duty - [See second Family Law - Topic 6603 ].

Family Law - Topic 6672

Dependents' relief legislation - Entitlement - Proper test - [See first Family Law - Topic 6603 ].

Family Law - Topic 6682

Dependents' relief legislation - Considerations in making awards - Moral duty of deceased - [See second Family Law - Topic 6603 and both Family Law - Topic 6701 ].

Family Law - Topic 6701

Dependents' relief legislation - Awards - Revision of will re disposition of property - The testator/deceased left an estate of some $438,000 - In his will, he made bequests of $43,000, a bequest of $10,000 to his adult son (Tony), and left the balance of his estate to his common law spouse (Korejwo) - A trial judge varied the will under s. 2 of the Wills Variation Act - He replaced the bequest to Tony with a payment of $20,000, and limited the bequest to Korejwo to a life interest in the residue of the estate - The British Columbia Court of Appeal agreed that Korejwo's claim was not limited to the deceased's legal obligation to pay spousal support - "That starting point is clearly amplified by a substantial moral obligation" - Korejwo was, in the testator's words, a faithful and loving companion to him - He promised to look after her - The variation failed to accomplish that objective - The only means of honouring the deceased's legal and moral obligations to the spouse, as well as his testamentary wish, was to reinstate the disposition of the residue of his estate to her - The court ordered a reversion to the original will, with an increase in the bequest to Tony to $60,000 - See paragraph 47.

Family Law - Topic 6701

Dependents' relief legislation - Awards - Revision of will re disposition of property - The testator/deceased left an estate of some $438,000 - His will limited his bequest to his adult son (Tony) to $10,000 "as he has been estranged from me for many years" - The deceased left the balance of the estate to his common law spouse - The trial judge varied the will under s. 2 of the Wills Variation Act, by replacing the bequest to Tony with a payment of $20,000 - On appeal, Tony argued that the trial judge failed to give sufficient weight to his poor health, his inability to work, and his limited and uncertain pension income - The British Columbia Court of Appeal held that those disabilities and correlative financial concerns, which arose before the testator's death, created a moral obligation to provide for Tony - Also, the testator initially planned to leave Tony $60,000 and only reduced that because of market fluctuations - On the other hand, it was not clear Tony's physical disabilities had significantly altered his financial prospects - It had been his choice not to seek long-term employment - He had some $90,000 in savings - In the court's view, $60,000 represented an adequate, fair and equitable bequest to Tony - See paragraph 48.

Family Law - Topic 6763

Dependents' relief legislation - Practice - Appeals - Before addressing the substance of this appeal under the Wills Variation Act, the British Columbia Court of Appeal noted the standard of review - "[I]n Tataryn [Estate (2004) (S.C.C.)] ... the Court held that an appellate court reviewing the provisions of a will under the Act is in the same position as the trial judge, and owes deference only to those findings based on oral testimony. In Doucette v. Doucette, 2009 ... this Court acknowledged it had some independent discretion in determining whether a testator has made adequate provision under the Act, but affirmed the general rule of appellate review governing the assessment of oral evidence remains the same, and the findings of fact of the trial judge deserve deference unless they are unreasonable or based on insufficient evidence" - See paragraph 41.

Practice - Topic 5258

Trials - General - Trial of actions together or back to back - When appropriate - An adult son (Tony) brought an action under the Wills Variation Act (WVA) against his brother, the executor/beneficiary of the will made by their mother - When the action was scheduled for trial, the court learned Tony had filed a caveat with respect to his intended action under the WVA against his father's estate - The trial judge ordered that the actions be tried at the same time - On appeal, the father's common law spouse (Korejwo) argued that the trial judge erred in so ordering - The British Columbia Court of Appeal dismissed that ground of appeal - "While the order was unusual", any irregularity was corrected by subsequent events - Korejwo did not object to proceeding with both actions at the trial - There was sufficient commonality between the actions: the actions involved the same witnesses; Tony's circumstances were relevant to both actions; and both involved the moral obligation owed by a parent to an adult child - Korejwo was unable to provide particulars with respect to her claim that the order was prejudicial to her - The trial judge's order was affirmed by the parties, did not result in any unfairness or injustice, and was an appropriate exercise of the trial judge's discretion - See paragraphs 26 to 31.

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, appld. [para. 35].

Picketts v. Hall et al. (2009), 273 B.C.A.C. 300; 461 W.A.C. 300; 95 B.C.L.R.(4th) 83; 2009 BCCA 329, refd to. [para. 40].

Rose v. Bloomfield - see Rose v. Crayne Estate et al.

Rose v. Crayne Estate et al., [2010] B.C.T.C. Uned. 315; 56 E.T.R.(3d) 74; 2010 BCSC 315, refd to. [para. 40].

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. 41].

Erlichman v. Erlichman Estate (2002), 165 B.C.A.C. 115; 270 W.A.C. 115; 99 B.C.L.R.(3d) 26; 2002 BCCA 160, refd to. [para. 50].

Statutes Noticed:

Wills Variation Act, R.S.B.C. 1996, c. 490, sect. 2 [para. 32].

Counsel:

E. Chesterley, for Roy A. Hall;

L. Finkelstein, for Rose F. Korejwo.

These appeals were heard at Vancouver, British Columbia, on April 26, 2011, before Neilson, Groberman and Bennett, JJ.A., of the British Columbia Court of Appeal. In reasons written by Neilson, J.A., the Court delivered the following judgment dated August 22, 2011.