Vielbig v. Waterland Estate, 6 ETR (2d) 1

JudgeSouthin, Hinds and Ryan, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateJanuary 31, 1995
JurisdictionBritish Columbia
Citations6 ETR (2d) 1;[1995] 3 WWR 515;54 BCAC 219;121 DLR (4th) 485;[1995] BCJ No 170 (QL);(1995), 54 B.C.A.C. 219 (CA);1995 CanLII 2544 (BC CA);1 BCLR (3d) 76

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.

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60 practice notes
  • Henderson v. Myler,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • August 31, 2022
    ...testator’s own conduct: see, for example, Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341 (S.C.); Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76 [36]  Modern authorities have expressed doubt of the validity of that approach as it concerns an accusation that the testator l......
  • Kelly v. Baker, 15 ETR (2d) 219
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • September 6, 1996
    ...(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. Statutes Noticed: Adoption Act, R.S.B.C. 1979, c. 4, sect. 11(1) [para. 36]. ......
  • Chan et al. v. Lee Estate et al., (2004) 205 B.C.A.C. 188 (CA)
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • December 16, 2004
    ...(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. 54]. 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. Lee v. Lee Estate (1993), 84 B.C.L.R.(2d) 341 (S.C. Master), refd to. [para.......
  • Woodward Estate, Re, [2001] B.C.T.C. Uned. 171
    • Canada
    • British Columbia Supreme Court of British Columbia (Canada)
    • April 27, 2001
    ...what his prospects were for successfully opposing the petition. [44] The Court of Appeal in Vielberg v. Waterland Estate (1995) 1 B.C.L.R. (3d) 76 concluded that where there was no question as to the validity or meaning of a will or the capacity of a testator, persons without meritorious cl......
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60 cases
  • Petrowski v. Petrowski Estate et al., (2009) 476 A.R. 171 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • September 2, 2009
    ...285; 387 W.A.C. 285; 2007 BCCA 20, folld. [para. 69]. Davey v. Gruyaert - see Davey Estate, Re. Vielbig v. Waterland Estate et al., [1995] 3 W.W.R. 515; 54 B.C.A.C. 219; 88 W.A.C. 219; 1 B.C.L.R.(3d) 76; 121 D.L.R.(4th) 485 (C.A.), refd to. [para. Tomlyn v. Herchenson Estate et al., [2008] ......
  • Chang Estate v. Chang, [2014] B.C.T.C. Uned. 1243
    • Canada
    • Supreme Court of British Columbia (Canada)
    • July 7, 2014
    ...be awarded their costs out of the estate: Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341 (S.C.); Vielbig v. Waterland Estate (1995), 121 D.L.R. (4th) 485 (B.C.C.A.). [34] In contrast where the validity of a will is at issue, Madam Justice Gray, in Maddess v. Racz , 2009 BCSC 1550, after tho......
  • McBride v. Voth et al., [2010] B.C.T.C. Uned. 443 (SC)
    • Canada
    • Supreme Court of British Columbia (Canada)
    • April 1, 2010
    ...and Helgason et al. , 72 D.L.R.(3d) 395, [1976] B.C.J. No. 1393 (C.A.); Price . On the other hand, in Vielbig v. Waterland Estate (1995), 1 B.C.L.R.(3d) 76, 6 E.T.R.(2d) 1 (C.A.), the Court of Appeal held that equal treatment among independent adult children is prima facie fair from a moral......
  • Unger v. Unger Estate, 2017 BCSC 1946
    • Canada
    • Supreme Court of British Columbia (Canada)
    • October 30, 2017
    ...a helpful statement of the principles governing the issue of costs in estate litigation:[21] In Vielbig v. Waterland Estate (1995), 121 D.L.R. (4th) 485, 1 B.C.L.R. (3d) 76 (C.A.), the British Columbia Court of Appeal approved the following summary of the law made by Master Horn in Lee v. L......
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