Vielbig v. Waterland Estate et al., (1995) 54 B.C.A.C. 219 (CA)

• Judge: Southin, Hinds and Ryan, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 31, 1995
• Jurisdiction: British Columbia
• Citations: (1995), 54 B.C.A.C. 219 (CA);1995 CanLII 2544 (BC CA);121 DLR (4th) 485;[1995] 3 WWR 515;1 BCLR (3d) 76;54 BCAC 219;6 ETR (2d) 1;[1995] BCJ No 170 (QL)

Vielbig v. Waterland Estate (1995), 54 B.C.A.C. 219 (CA);

    88 W.A.C. 219

MLB headnote and full text

Mary-Jane Elizabeth Vielbig, also known as Elizabeth Vielbig (appellant) v. Carl R. Jonsson, Executor of the Will of Tilmer Manville Waterland, deceased, Thomas Manville Waterland, Guy Henry Preston Thompson, Kimala Thompson, Patricia Ann Schaan, Ruth Berg, Charm Peterson, Joel Waterland, Chris Hiriam Waterland, Charles R. Waterland, Thomas G. Waterland, Wanda Waterland Gundlach, Luther T. Waterland Jr., Helen Waterland Fahrni, Luther Quam Waterland, Victor Waterland Jr., Delores Waterland Tiedmann, Bonita Waterland Pulse, Charles Waterland and Paul Waterland (respondents)

(CA018608)

Indexed As: Vielbig v. Waterland Estate et al.

British Columbia Court of Appeal

Southin, Hinds and Ryan, JJ.A.

January 31, 1995.

Summary:

A daughter sought a variation of her late father's will under s. 2(1) of the Wills Vari­ation Act. Following a summary trial, the trial judge dismissed the claim with costs against the daughter. The daughter appealed both rulings.

The British Columbia Court of Appeal dismissed the appeal.

Family Law - Topic 6666

Dependent's relief legislation - Entitlement - Existence of moral duty - A 90 year old father left his 60 year old daughter 28 percent of his estate; believing her unable to manage money, his executor was to set aside funds to purchase an indexed insur­ance policy to provide her with a life annuity income of $1,000 per month - All other bequests were outright - The daugh­ter was not "dependent" upon her father and was employed before coming to live with and care for her father in his last year - During that time he gave her $500 US/month and a car - She received his bank account and obtained employment after his death - She diminished, not increased, his estate - The British Colum­bia Court of Appeal found no moral duty owed which affected the father's will - See paragraphs 35 to 39.

Family Law - Topic 6682

Dependent's relief legislation - Consider­ations on making awards - Moral duty of testator - [See Family Law - Topic 6666 ].

Family Law - Topic 6760

Dependent's relief legislation - Practice - Costs - A daughter sought to vary her late father's will under the Wills Variation Act - There was no question of the validity of the will, the testamentary capacity of the father or of the meaning of the will - The father, as testator, was not at fault in any way - The trial judge dismissed the claim because there was no legal or moral obli­gation on the testator to do more than he did for his daughter - The judge ordered costs against the daughter - The British Columbia Court of Appeal refused to disturb the costs order, stating that the usual rule that costs follow the event should be followed - See paragraphs 40 to 47.

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, refd to. [para. 26].

Walker v. McDermott, [1931] S.C.R. 94, refd to. [para. 28].

Lee v. Lee Estate - see Lee v. Horne.

Lee v. Horne (1993), 50 E.T.R. 297 (B.C.S.C.), refd to. [para. 41].

Lukie v. Helgason (1976), 1 B.C.L.R. 1 (C.A.), refd to. [para. 42].

Bow Estate, Re, [1971] 4 W.W.R. 234 (B.C.S.C.), refd to. [para. 44].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, generally [para. 30].

Family Relations Act, R.S.B.C. 1979, c. 121, generally [para. 30].

Wills Variation Act, R.S.B.C. 1979, c. 435, sect. 2(1) [paras. 1-2, 26].

Counsel:

Lynn C. Waterman, for the appellant;

Harold J. Rusk, for the respondents.

This appeal was heard on January 4, 1995, in Vancouver, British Columbia, before Southin, Hinds and Ryan, JJ.A., of the British Columbia Court of Appeal.

The decision of the court was delivered on January 31, 1995, by Hinds, J.A.