The law in the area of Wills variation continues to evolve, and the most recent case, in which reasons for judgement were recently released, adds to the deepening body of knowledge. The case, Robillard v. Robillard Estate, is a decision of the B.C. Supreme Court.
In B.C., a spouse (married or “common law” after two years of co-habitation) and a child (natural or adopted) are legally eligible to seek a variation of a Will if they feel that their bequest is not “adequate, just and equitable.”
If a Court agrees, chances are that a variation will happen. In such a case, a Court will consider first whether the deceased person had a legal duty to the person seeking the variation. Second, the Court will consider whether the deceased person had a moral duty owing to the person.
Most cases, in my opinion, are not easily decided. Courts examine all the evidence in great depth and with great care, knowing that Will makers in B.C. have freedom to make whatever bequests they want, to whomever they want.
The parties’ behaviour in these cases matters because it will bear on all the issues the Court needs to consider in determining whether to vary the Will. In the Robillard decision, the behaviour of the Plaintiff was particularly significant; although he was a very devoted child of the deceased, other exhibited behaviour of his seemed inconsistent.
The deceased died in September, 2011. She was survived by her two children: the Plaintiff, who lived in the Lower Mainland, and another child who lived in Mexico. The relationship between the two children had been fairly close.
The Plaintiff had retired in 2006, having returned to live in Vancouver from eastern Canada in 1996. The defendant sibling of the Plaintiff had lived in Mexico since 2001. The deceased’s health seemed to deteriorate beginning in 1996.
The Plaintiff was very involved in looking after the deceased since his move to Vancouver. As her health deteriorated further, his time spent with her increased. The Plaintiff did grocery shopping, banking, bill paying, driving, prescription pickups and other chores for the deceased over time. He also arranged home care with Fraser Health Authority for the deceased.
In 2008, the deceased was moved to a care facility in the Langley area. By this time, the deceased was suffering from Alzheimer’s disease. The Plaintiff visited and fed the deceased every day.
At some point after 2008, the Plaintiff began withdrawing funds from the deceased’s bank for various purposes, including paying for car insurance and gas. Several payments were made with cash, but the Plaintiff did not have receipts for any of the transactions made. Cash of the deceased’s was kept in a bag specifically to segregate it from the Plaintiff’s own cash.
Though the Plaintiff said he spent $700 or so each month for expenses for the deceased, there were no receipts. The Plaintiff withdrew about $90,000 for various purposes, and about 6 months after the deceased died, the Plaintiff withdrew another $150,000, not telling the Bank of the deceased’s death. About $29,000 was left in the account, and the Plaintiff told the defendant that her share of the Estate was the $29,000.
The defendant later became confused about why the balance in the account seemed so small, launched action and had the Plaintiff removed as Executor of the Estate. The Defendant became the new Executrix. She never received an accounting from the Plaintiff.
The Plaintiff then sought a variation of the Will. The Will gave the two siblings an equal share of the Estate. What the Plaintiff sought was a variation that would allow him to retain all the funds he had received from the Bank (and the Estate).
The defendant acknowledged that the Plaintiff was a good son, but not a good Executor. The Court reviewed the applicable law, especially with respect to the moral duties owed by a Will maker to an adult child. The Court also reviewed the duties owed by an Attorney acting under a Power of Attorney, as the Plaintiff was the Attorney before the deceased died.
One of the duties discussed by the Court was record keeping. The Court then turned to consider the credibility of the two parties as witnesses.
The Court felt that the Plaintiff was not a credible witness, and preferred the evidence of the Defendant over that of the Plaintiff. Some important aspects of the Plaintiff’s evidence in Court were inconsistent with his evidence in sworn affidavits, and the Court strongly expressed its concern over the lack of accounting in the Plaintiff’s management of the deceased’s finances.
The Court felt that the Plaintiff was unwilling to share information regarding the Estate to the Defendant and operated in secrecy. He took over 90% of the Estate’s value in the withdrawals, leaving a very modest amount for the Defendant. The Court held that the Will was not to be varied, and required the Plaintiff to return an amount sufficient to equalize the Estate between the Plaintiff and Defendant.
Acting as an Attorney under a Power of Attorney, or as an Executor, is always an ongoing, long-term activity. Any person would expect in such circumstances that a devoted child would also be a careful Executor/Attorney.
That is what makes this case somewhat unusual. It is noteworthy that the Plaintiff was not represented by a Lawyer in this case, and did not seem to have any other advisor over the years either.
Handled differently, the Plaintiff’s case would likely have had a different outcome. With a little good advice and a slightly different approach by the Plaintiff, the Defendant (the sister) might have accepted an unequal distribution of the Estate given all the good work the Plaintiff did over the years for the deceased.
In the end, however, the acting in secret, the cash withdrawals and the total lack of accounting seemed to negate all the actions of a devoted child and sibling.
This ad originally appeared in the Richmond News on August 28, 2015.