Kelly v. Baker et al., (1996) 82 B.C.A.C. 150 (CA)
| Judge | Legg, Finch and Huddart, JJ.A. |
| Court | Court of Appeal (British Columbia) |
| Case Date | September 06, 1996 |
| Jurisdiction | British Columbia |
| Citations | (1996), 82 B.C.A.C. 150 (CA);1996 CanLII 1596 (BC CA);15 ETR (2d) 219;82 BCAC 150;[1996] BCJ No 3050 (QL) |
Kelly v. Baker (1996), 82 B.C.A.C. 150 (CA);
133 W.A.C. 150
MLB headnote and full text
James Phillip Kelly (plaintiff/appellant) v. Judith Evelyn Baker, Jean Margaret Haynes and John William Kelly and Judith Evelyn Baker, Executrix of the Estate of Donelda Evelyn Kelly (defendants/respondents)
(CA018934)
Indexed As: Kelly v. Baker et al.
British Columbia Court of Appeal
Legg, Finch and Huddart, JJ.A.
October 16, 1996.
Summary:
The testatrix disinherited her adopted son in her will. The adopted son sued to vary the distribution of her estate under the Wills Variation Act. The trial judge dismissed the claim. The adopted son appealed.
The British Columbia Court of Appeal dismissed the appeal.
Family Law - Topic 1674
Adoption - Effect of adoption - On inheritance rights - An adopted son appealed his disinheritance by his adoptive mother The son claimed the testatrix's will contravened s. 11(1) of the Adoption Act, which provided that an adopted child became on adoption the child of the adopting parent, because the will referred to the defendant beneficiaries as "the following children", and to him as "my adopted son" - The British Columbia Court of Appeal rejected this argument - See paragraphs 36 to 39.
Family Law - Topic 6663
Dependents' relief legislation - Entitlement - Requirement of need - The British Columbia Court of Appeal held that the needs of a claimant under the Wills Variation Act, or of a beneficiary under the will, may be relevant considerations in deciding whether the testator met his legal obligations - However, no party was required to prove need as a condition precedent to entitlement to share in the estate - See paragraph 49.
Family Law - Topic 6672
Dependents' relief legislation - Entitlement - Proper test - The British Columbia Court of Appeal stated that in deciding a claim under s. 2(1) of the Wills Variation Act, the task of the court was to decide whether, at the date of the testator's death, the will was consistent with the discharge by a good parent of his/her duties to his/her family - The law did not require that the reason expressed by the testator in the will, or elsewhere, for disinheriting the claimant be justifiable - It was sufficient if there were valid and rational reasons at the time of death (valid in the sense of being based on fact; rational in the sense that there was a logical connection between the reasons and the act of disinheritance) - See paragraph 58.
Wills - Topic 5183
Construction - Evidence and proof - Intention of testator - An adopted son appealed his disinheritance by his adoptive mother - The trial judge admitted as proof of the testatrix's reasons, two letters, one from the son's ex-wife to his sister (the ex-wife not being called to testify) and one from the son's now-deceased adoptive father - The British Columbia Court of Appeal held that the trial judge did not err in his discretion in receiving the two letters into evidence - See paragraphs 24 to 33.
Cases Noticed:
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. 20].
Vrint, Re, [1940] 1 Ch. D. 920; [1940] 3 All E.R. 470, refd to. [para. 30].
Smallwood, Re, [1951] 1 Ch. D. 369; [1951] 1 All E.R. 372, refd to. [para. 31].
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; 93 B.C.L.R. 145, refd to. [para. 46].
Landy v. Landy Estate (1991), 8 B.C.A.C. 130; 17 W.A.C. 130; 60 B.C.L.R.(2d) 282 (C.A.), refd to. [para. 58].
Morris v. Morris (1982), 41 B.C.L.R. 239 (C.A.), refd to. [para. 58].
Lukie v. Helgason (1976), 1 B.C.L.R. 1 (C.A.), refd to. [para. 58].
Vielbig v. Waterland Estate et al. (1995), 54 B.C.A.C. 219; 88 W.A.C. 219; 1 B.C.L.R.(3d) 76 (C.A.), refd to. [para. 61].
Statutes Noticed:
Adoption Act, R.S.B.C. 1979, c. 4, sect. 11(1) [para. 36].
Wills Variation Act, R.S.B.C. 1979, c. 435, sect. 2(1) [para. 46]; sect. 2(3), 2(4) [para. 28].
Counsel:
James Kelly, appearing in person;
B.F. Schreiber, for the respondents, except John William Kelly.
This appeal was heard in Vancouver, British Columbia, on September 6, 1996, before Legg, Finch and Huddart, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Finch, J.A., on October 16, 1996.
To continue reading
Request your trial
-
Peterson v. Welwood, 2018 BCSC 1379
...did not rely on the principles enunciated in Bell v. Roy Estate, (1993) 75 B.C.L.R. (2d) 213 (C.A.) and Kelly v. Baker, (1996) 82 B.C.A.C. 150 (C.A.). The defendants did not suggest that the Deceased’s moral duty to the plaintiff was entirely negated on account of any alleged wrongful condu......
-
McBride v. Voth et al., [2010] B.C.T.C. Uned. 443 (SC)
...[140] The Court of Appeal reaffirmed the Bell model after Tataryn was decided at the Supreme Court level. In Kelly v. Baker (1996), 82 B.C.A.C. 150, 15 E.T.R.(2d) 219 (C.A.) [ Kelly ], the Court of Appeal applied the Bell analysis and concluded that the testator had valid and rational reaso......
-
Rawlins v. Rawlins,
...WESA holding that the provision is not limited to statements made by the testator him or herself. See, for example, Kelly v. Baker (1996), 82 B.C.A.C. 150 at para. 32-33. However, the point is that to be admissible under s. 62, the statements must relate to the testator’s reasons for......
-
Hancock v. Hancock, [2014] B.C.T.C. Uned. 2398
...to show that the will-maker's reasons were false or unwarranted: McBride at para. 138. In a subsequent decision, Kelly v. Baker (1996), 82 B.C.A.C. 150 (C.A.), the Court of Appeal reaffirmed the requirement that the testator's reasons must be valid, meaning factually true, and rational, in ......
-
Peterson v. Welwood, 2018 BCSC 1379
...did not rely on the principles enunciated in Bell v. Roy Estate, (1993) 75 B.C.L.R. (2d) 213 (C.A.) and Kelly v. Baker, (1996) 82 B.C.A.C. 150 (C.A.). The defendants did not suggest that the Deceased’s moral duty to the plaintiff was entirely negated on account of any alleged wrongful condu......
-
McBride v. Voth et al., [2010] B.C.T.C. Uned. 443 (SC)
...[140] The Court of Appeal reaffirmed the Bell model after Tataryn was decided at the Supreme Court level. In Kelly v. Baker (1996), 82 B.C.A.C. 150, 15 E.T.R.(2d) 219 (C.A.) [ Kelly ], the Court of Appeal applied the Bell analysis and concluded that the testator had valid and rational reaso......
-
Rawlins v. Rawlins,
...WESA holding that the provision is not limited to statements made by the testator him or herself. See, for example, Kelly v. Baker (1996), 82 B.C.A.C. 150 at para. 32-33. However, the point is that to be admissible under s. 62, the statements must relate to the testator’s reasons for......
-
Hancock v. Hancock, [2014] B.C.T.C. Uned. 2398
...to show that the will-maker's reasons were false or unwarranted: McBride at para. 138. In a subsequent decision, Kelly v. Baker (1996), 82 B.C.A.C. 150 (C.A.), the Court of Appeal reaffirmed the requirement that the testator's reasons must be valid, meaning factually true, and rational, in ......
-
Tom V. Tang, 2023 BCCA 221: Subjective Reasons And The Objectively Reasonable Will-Maker
...v. J.D.M., 2016 BCSC 2265 at para. 92. 3. Bell v. Roy Estate (1993), 75 B.C.L.R (2d) 213, 1993 CanLII 1262 (C.A.); Kelly v. Baker (1996), 82 B.C.A.C. 150, 1996 CanLII 1596, and Hall v. Hall, 2011 BCCA 4. Hall v. Hall, 2011 BCCA 354 at para. 43. 5. Though the trial judge had awarded Rose and......
-
Disinheriting An Independent Adult Child ' BC Court Of Appeal Confirms Objective Judicious Parent Test In Wills Variation Actions: Tom V. Tang, 2023 BCCA 221
...if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance: Kelly v. Baker (1996), 82 B.C.A.C. 150 at para. On its face, this framework appeared to ignore the objective test set out by Tataryn. In Tom v. Tang, 2023 BCCA 221, the BC Co......
-
Disinheriting adult independent children under the B.C. Wills Variation Act.
...plaintiff bore the burden of showing the enunciated reasons were false or unwarranted. This approach was reiterated in Kelly v. Baker 15 E.T.R. (2d) 219 (B.C.C.A.). Applying the Bell analysis, the court concluded that the testator had valid and rational reasons for disinheriting the claiman......