[1]           This is an application for summary trial brought by the applicant daughters within a wills variation proceeding against their mother’s estate. The case is driven by misunderstandings and estrangements created by parental efforts to either support or control the children’s living arrangements without adequate paperwork or discussion.

[2]           The applicant Norma Enns is the daughter of the deceased mother Mary Gordon, who passed away on October 28, 2015. Norma’s father was Albert Gordon, who died on November 13, 2012. Norma is also the executrix of the estate of the other plaintiff, her sister Elizabeth Gordon.

[3]           Timothy McMullen, Judith McMullen and BMO Trust Company are the executors of the estate of Mary Gordon, who take no position on the application. They obtained probate on March 16, 2016. Timothy McMullen and Judith McMullen have also to receive small bequests under the will in the nature of executors’ fees, which are not disputed.

[4]           The defendants Delta Hospice Society and British Columbia’s Children’s Hospital Foundation are the registered charities who are the residual beneficiaries. They oppose any readjustment in favour of the daughters.

[5]           Since many of the parties share surnames, I will refer to them by their first names for simplicity, without intending any disrespect.

[6]           This application is brought pursuant to Rule 9-7 of the Supreme Court Civil Rules. All parties agree this application is suitable for summary trial determination.

[7]           The documentary evidence tendered in this two-day summary trial was substantial. However, in order to fully canvass certain specific credibility questions, I allowed a limited cross-examination of Norma at the outset of the hearing. With the comfort of this additional evidence, I am satisfied that I am able to find the facts necessary to decide the issues of fact and law on the evidence tendered, and that it would be just to do so in this case.

[8]           Mary and Albert were married in 1958. Norma was born on December 3, 1958. Elizabeth was born on October 14, 1965.

[9]           The evidence suggests that Mary and Albert were strict and controlling parents, who tended to hold grudges. Their controlling nature is supported by evidence from Sally Gordon, who was married to Albert’s brother Ron. Sally indicates that Mary and Albert were very critical of people, and would abandon friendships when they perceived they had been wronged. Sally herself was subject to one of these episodes over which the couples did not speak for several years. Sally said that she had to be careful what she said to Mary and Albert in order to avoid disagreements. I place considerable weight on Sally’s evidence given that she does not have a financial interest in the outcome of this litigation. Her evidence is also consistent with that from other witnesses.

[10]        Norma gave evidence of mental abuse and some physical discipline by her parents. She moved out of the family home in 1979, when she was 20 years old. She had been working full-time since leaving high school. Norma was eager to leave, as Mary and Albert had strict rules about who she could see and when she was required to return home. Norma was not even allowed to have a key to the house. After informing Mary and Albert of her decision to move out, Norma says that her parents called her a “slut and a whore”, and informed her that she could leave with nothing but her clothes.

[11]        Despite this reaction, Norma resumed relations with her parents only a couple of months after moving out. She called weekly and would visit every two weeks.

[12]        In 1987, her sister Elizabeth also moved out of the home. Elizabeth and Albert arranged for the purchase of a condo in Richmond (the “Richmond Condo”) where Elizabeth would live. Elizabeth and her father are shown as tenants in common on title, each owning 50%.

[13]        In 1991, Norma met Shawn Enns. Mary and Albert did not approve of the relationship. The day after meeting Shawn, they told Norma that they thought he was a loser and that she should find someone more appropriate.

[14]        In 1993, Elizabeth married Constantine Lefas.

[15]        Eventually, Norma and Shawn wished to become engaged. Shawn went to see Mary and Albert to get their permission. It was not given. Shawn’s evidence is that Mary’s initial reaction was “Oh, Jesus Christ!” and that they told him they would not be paying for any wedding. Norma and Shawn’s wedding was nonetheless scheduled for June 4, 1994. Mary only agreed to attend after Norma called her on the day before the wedding.

[16]        Before and after the wedding, Norma and Shawn were living in a condo on Pipeline Road in Coquitlam, B.C. (the “Pipeline Condo”). Norma continued to visit her parents every two weeks. They also spent time together during holidays.

[17]        Norma and Shawn’s only child, Courtney, was born on April 26, 1996. This event did seem to thaw Mary and Albert somewhat. She was their first and only grandchild, and they became quite engaged in her life.

[18]        Meanwhile, in 1996 Elizabeth and Constantine wished to sell the Richmond Condo and purchase a new house in Langley (the “Langley House”). The Richmond Condo sold on July 5, 1996 with Albert receiving 50% of the net sale proceeds. The balance was directed to pay an outstanding mortgage and towards the purchase of the Langley House. Elizabeth and Constantine were short of the money required to purchase the Langley House. They went to Albert to borrow money. The parties entered into a promissory note in the amount of $34,104.73. The terms provided that it would be repayable from the proceeds of the disposition of the Langley House, or upon demand. This allowed the Langley House to be purchased on July 8, 1996.

[19]        On January 15, 1997, Albert demanded full repayment of the promissory note within seven days from Elizabeth and Constantine. Albert filed a writ of summons on February 7, 1997. Apparently, matters became very heated. Eventually, Constantine felt it necessary to apologize for his actions during this period, and also made a partial repayment. By June 2, 1997, the Langley House was sold and the promissory note was repaid to Albert in full. But the damage had been done. Elizabeth was estranged from her parents, and they did not speak again until 2011.

[20]        After Courtney’s birth, Norma was scheduled to go back to work in late 1996. Mary and Albert suggested that Norma and Shawn move to Tsawwassen, B.C. so that Mary and Albert would be closer and could provide day care for Courtney. Norma and Shawn decided to move, as they preferred that Mary and Albert provide day care for Courtney as opposed to a private day care facility.

[21]        As part of the move, Norma and Shawn had to sell the Pipeline Condo. Due to one of the rare declines in the Lower Mainland’s real estate market, Norma and Shawn needed the net sale proceeds and an additional $12,000 to satisfy the outstanding mortgage. As Shawn was in the process of arranging financing to cover the $12,000, Albert offered to pay it. Shawn and Norma accepted the offer. After the sale, Shawn gives evidence that he went to Albert to create a repayment schedule, but Albert declined to discuss it any further, and never again asked for repayment.

[22]        Norma and Shawn rented an apartment in Tsawwassen. However, Norma’s evidence is that the concept that Mary and Albert would look after Courtney did not proceed according to plan. In the first month after Norma returned to work, there were four occasions that Mary and Albert called in the morning to inform Norma that they were not available to look after Courtney that day. Norma had to quickly find alternatives. Given her conclusion that she could not rely on her parents for reliable care, Norma put Courtney in day care. This caused a fight with her parents. Norma says they called her an “unfit mother” and again asserted that Shawn was a “loser”. While this did create tension between Norma and her parents, the incident did not cause an estrangement.

[23]        In May 1997, Norma and Shawn decided to move back to Coquitlam because they did not like living in Tsawwassen. They rented a house in Coquitlam. Because of the move, her parents were again angered, and did not speak to Norma for approximately one month. However, after that, Norma resumed weekly phone calls and bi-weekly visits.

[24]        In 1998, Mary underwent two operations for breast cancer. Norma advised Elizabeth about these surgeries, but Elizabeth made no effort to visit her mother.

[25]        In 2000, Norma and Shawn were informed that the house they were renting was going to be sold. A plan to buy a new home was developed with her parents, whereby the parents would supply the down payment, and Shawn and Norma would pay the mortgage and other expenses.

[26]        Everyone eventually agreed on a townhouse in Surrey (the “Townhouse”). Albert informed Norma that only his and Mary’s names would go on title because they were supplying the down payment. Shawn had reservations about continuing with the purchase of the Townhouse under this arrangement. Norma also had reservations because she was generally aware of the dispute that Elizabeth had had with her parents over property. Regardless, Norma wished to proceed because she thought it was in Courtney’s best interests to live in the Townhouse.

[27]        Shortly before purchasing the Townhouse in 2001, Albert informed Norma that her name actually had to be on title along with her parents because strata rules required that all units be occupied by an owner. The parents made it clear that Shawn was not going on title. Norma executed a declaration of trust in favour of her parents as part of the closing documents signed at the lawyer’s office. She was given the opportunity to read the document in the lawyer’s office while everyone waited for her to sign it. She claims that she did not fully understand the implications of the declaration of trust, which declared that her parents were the equitable owners of her one-third share notwithstanding her position on title. She signed it because that is what her parents wanted. Her evidence is that Alfred suggested to her that the Townhouse would end up being hers one day, although the mechanism by which this would occur was left unclear. She understood it would at least happen by the time her parents passed away.

[28]        The Townhouse was purchased for approximately $135,000. The purchase price was satisfied with Mary and Albert’s $30,000 down payment, a $100,000 mortgage, and Norma and Shawn contributing $5,000 towards closing costs.

[29]        During the time they lived in the Townhouse, Norma and Shawn paid the monthly mortgage, strata payments, property taxes, maintenance expenses, and utility bills.

[30]        Norma maintained her relationship with her parents. She called weekly and visited every two weeks and on holidays. Mary and Albert were involved in Courtney’s life and were invited to attend school events and activities. As noted, during this period, Elizabeth continued to be estranged from Mary and Albert. To keep everyone happy, Norma would throw two birthday parties for Courtney: one at the Townhouse and the other at Mary and Albert’s house.

[31]        In 2004, Norma had to sign new mortgage documents because Albert had secured a better rate on a new mortgage. Shawn asked Albert if he could be added to title on the basis that he was making all the payments with respect to the Townhouse. Albert refused. He told Shawn that Norma and Courtney would be provided for if Shawn just left. It was at this point that Shawn decided he no longer wanted to see or speak to Albert or Mary. He advised Norma that he would no longer accompany Norma and Courtney on their visits to her parents.

[32]        Notwithstanding Shawn’s decision, Norma continued to visit her parents about every two weeks.

[33]        In 2009, Albert informed Norma that she needed to once again sign some documents in order to renew the mortgage on the Townhouse. Norma told Albert that Shawn’s name needed to be added to the title in order for her to agree. Albert refused. He said that Norma and Shawn were going to regret trying to put Shawn on the title, and that they were going to end up living “in a dump like Elizabeth”. Albert also initially refused to sell the Townhouse to Norma and Shawn as an alternative solution. Throughout this dispute, Norma and Shawn continued to make the necessary payments.

[34]        The situation worsened when Mary and Albert exercised their power under the declaration of trust to remove Norma from title. This created a problem for all concerned, as it caused Shawn and Norma to become renters, which was a violation of the strata bylaws. They were informed by the property manager of the strata that they needed to remedy this situation.

[35]        Shawn and Norma sought legal advice. They were informed that Mary and Albert had the right to remove Norma from title pursuant to the declaration of trust. Given that reality, they sought to purchase the Townhouse from Mary and Albert. Norma and Shawn made an offer to purchase for $210,000.

[36]        The Townhouse had recently been assessed for $308,000. However, Norma and Shawn noted that new units in the area were only selling for $300,000 and they suggested that a reasonable estimate for the true fair market value was $250,000. There was a suggestion in the correspondence that Mary and Albert had signaled that they might be prepared to accept two-thirds of the market value.

[37]        The offer was rejected. For their part, Mary and Albert said that they only considered Norma and Shawn to be renters, and that they had only put Norma on title to comply with strata bylaws. They also raised the fact that Norma and Shawn had not repaid the $12,000 provided when the Pipeline Condo was sold. They made a counter-offer of $250,000. Norma and Shawn accepted this. The transfer occurred on November 3, 2009.

[38]        This dispute over the Townhouse caused a two-year rift in the relationship between Norma and her parents. Norma’s evidence is that she always expected that the estrangement would be temporary.

[39]        Notably, shortly after this dispute in November 2009, Mary and Albert met with their lawyer to prepare wills. Though Mary did later prepare a codicil to make certain adjustments, there were no changes to the will that impacted Norma or Elizabeth’s limited allocations of $10,000 each under this will. The will was signed December 23, 2009, during the only two-year period that Mary was estranged from both her daughters.

[40]        In late 2009 or early 2010, Mary and Albert told Sally that they were only giving a small amount to their children and the rest was going to charities. Sally recalls them indicating that the reason they were only giving a small amount to Norma was the fight over the Townhouse, and that the reason they were only giving a small gift to Elizabeth was that they had been estranged for many years.

[41]        In late 2011, Mary was diagnosed with bone cancer, and she had Albert phone Norma to inform her of this situation. Norma passed along this information to Elizabeth. The daughters decided to visit Mary several weeks later. From Norma’s perspective, Mary was happy that her daughters had visited. This is supported by evidence from Sally, who spoke to Mary about the visit.

[42]        Norma resumed contact at this time, but did not make additional in-person visits until July 1, 2012. It is not known if Elizabeth had contact with Mary between late 2011 and July 1, 2012.

[43]        On July 1, 2012, Norma and Elizabeth resumed regular contact with Mary and Albert, driven by the fact that Albert had himself recently been admitted to hospital.

[44]        With Albert in hospital, Mary was with him every day. Norma and Elizabeth also visited nearly every day. Mary was sometimes driven home by Norma. With Mary at the hospital, Norma and Elizabeth helped out at Mary’s home by buying groceries and doing some cleaning.

[45]        Albert died on November 13, 2012. His estate went to Mary. Norma helped arrange the celebration of life ceremony for Albert, and gave a eulogy.

[46]        With Mary now widowed, Norma and Elizabeth continued to spend time with her. They took turns on the weekends taking Mary to perform various errands (while Elizabeth’s health permitted). Special events and holidays were spent together. The past events that had caused the estrangements were never discussed with the daughters.

[47]        After Albert’s death, Mary revisited the topic of her will during another visit with Sally and Ron. To the best of Sally’s recollection, Mary said “When I go, the girls will be in for a real shock, ha, ha, they don’t know that the house will be sold by the lawyer, and he will look after everything”. Sally suggested that Mary revisit the terms in her will given that there had been a change in her relationship with both Norma and Elizabeth since the will was prepared. Mary said she would not change the will, suggesting that the terms were what Albert wanted, and the girls had caused Albert grief. During a later visit with Ron and Sally, Mary suggested that if Norma and Elizabeth did not like the terms of the will, they could go to court, and it would not matter to her because she would be dead.

[48]        Mary also wrote a series of letters explaining her actions in limiting the gifts to her daughters. Rather than address the letters here, I will examine them in greater detail as part of my analysis below, given that one of the specific factors that must be reviewed is any stated reasons for the disinheritance.

[49]        After Albert’s death, Elizabeth began suffering from severe anxiety and needed medication to keep it under control. Her husband Constantine suffered a stroke and passed away on February 19, 2014. Elizabeth sought treatment for alcoholism in October 2014 and spent 53 days in a treatment facility in Nanaimo, B.C. While there, Mary, Norma, and Shawn visited her as often as the facility permitted.

[50]        Not long after being released from treatment for alcoholism, Elizabeth was diagnosed with terminal metastatic stage IV cancer of the pancreas. Elizabeth continued visiting Mary and helping her perform errands as long as her health permitted.

[51]        In 2015, Mary provided two interest-free loans totalling $15,000 to Norma, both of which were repaid.

[52]        Mary’s health worsened throughout 2015. In October 2015, she was admitted to hospital and died several days later on October 28, 2015, about four years after her estrangements from her daughters ended. Norma helped organize a small ceremony for Mary.

[53]        Elizabeth died on March 10, 2016. Norma was the executor and the sole beneficiary of the estate. She received approximately $250,000 through this estate.

[54]        Mary’s will provides that after all debts and funeral and testamentary expenses are paid, Mary’s estate devolves as follows:

[55]        There is no evidence that Mary or Albert had any particular connection or relationship with the charities.

[56]        As noted, the bequests to Dawson, Allen, Timothy and Judith are not challenged by the plaintiffs. Any reallocation will be net of those bequests.

[57]        As at the date of this application, the executors estimate the current value of Mary’s estate at $1,025,044.76. This amount is predominantly made up of the value of Mary and Albert’s home.

[58]        In order to vary Mary’s will, the plaintiffs rely on s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13, which provides as follows:

[59]        In terms of the applicable test for such a variation, the leading authority is Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807, which was more recently summarized by our Court of Appeal in Eckford v. Vanderwood, 2014 BCCA 261:

[60]        In its earlier decision in Hall v. Hall, 2011 BCCA 354, the court stated the following in relation to claims by adult independent children:

[61]        The decision of Madam Justice Ballance in Dunsdon v. Dunsdon, 2012 BCSC 1274, also provides a useful summary of the test, as well as a list of considerations in the context of a claim by an adult independent child:

[62]        Given Elizabeth’s passing, it is also necessary to note the legal principles applicable to wills variation claims by estates. In that regard, death does not disentitle an estate to relief, but it is a circumstance that may be considered in determining what is just and equitable: Pelletier v. Erb Estate, 2002 BCSC 1158 at para. 63.

[63]        Although the Dunsdon factors are not to be treated as exclusive or independent factors, I find it useful to use them as guideposts to facilitate the analysis of the evidence.

[64]        There was a limited 2-year estrangement between Mary and Norma, spread over a 38-year adult relationship. Although the estrangement was primarily driven by Norma and Shawn’s misunderstanding of their legal rights to be on title to the Townhouse, their responsibility for this estrangement is mitigated by:

[65]        To the extent that it is necessary to consider “fault”, while it may rest primarily with Norma and Shawn, there is also fault to be attributed to Mary and Albert. There is also an element of non-fault based misunderstanding.

[66]        That said, it is also relevant that the estrangement was not brought to an end by Norma. It ended only when Albert reached out after Mary became ill.

[67]        Turning to Elizabeth’s situation, her estrangement was far longer - about 15 years spread over a 31-year adult relationship. The estrangement appears to have again resulted from Albert exercising his strict legal rights under a promissory note, and Constantine and Elizabeth reacting angrily to this unexpected development. However, it is difficult to mitigate the reasons for this estrangement given the absence of evidence from Elizabeth. She declined to attempt reconciliation during Mary’s first health scare. Elizabeth eventually reconciled, but her renewed relationship was not as deep as Norma’s, given her own health problems.

[68]        The size of the estate is over $1 million, and can certainly sustain a reasonable level of redistribution without depriving any of the existing beneficiaries of their funds or, in the case of the charities, a healthy residual sum.

[69]        Norma and Elizabeth certainly provided assistance to Mary during her last years, Norma more so than Elizabeth.

[70]        Norma also notes that, at least in part through her family’s efforts in maintaining the Townhouse, her parents were able to realize a $220,000 profit on their initial $30,000 investment.

[71]        This is not a material factor in this case. Estate planning was never discussed between Mary and her daughters.

[72]        The plaintiffs do not claim that this is a material factor in this case.

[73]        Norma received $12,000 from her parents as part of the sale of the Pipeline Condo. However, the effect of this is mitigated by the fact that, (a) Shawn made efforts to try to pay this amount back, and (b) Mary and Albert used this amount as leverage to obtain a higher final amount on the sale of the Townhouse.

[74]        The charities note that loans and down payments were provided to both Elizabeth and Norma to assist with their living arrangements. However, these were not gifts, as Mary and Alfred repeatedly made clear. Elizabeth and Norma also “paid a price” emotionally for this assistance, given the fallout that occurred as a result of their parents’ efforts to enforce their strict legal rights.

[75]        Furthermore, any alleged “gift” to Norma through the provision of the original $30,000 down payment on the Townhouse is tempered by the fact that Alfred and Mary made a healthy profit on their investment, as noted above. This profit also tempers the suggestion that there was a material “gift” embedded in the agreement to the final $250,000 purchase price for the Townhouse.

[76]        There is some evidence that Elizabeth may have been relieved from at least 28 months of payments that were expected to be made to Mary and Albert as part of the arrangements regarding the Richmond Condo, and Elizabeth may have also been given some furniture.

[77]        Elizabeth and Norma were each the beneficiaries of approximately $20,000 flowing from Mary’s TFSA account, and some small personal effects.

[78]        Mary’s reasons are expressed in a series of memos she prepared explaining her testamentary decisions, as well as the evidence from her sister-in-law Sally outlined earlier.

[79]        First, the memos, some of which were presumably written in relation to earlier wills that were not before the court. To summarize the key elements:

[80]        As noted above, I find Sally’s evidence on Mary’s reasons discussed above to be of particular note. I draw the following conclusions from Sally’s evidence:

[81]        I note that the will was made in the midst of Mary’s estrangement from both daughters. The diminished moral duty Mary may have felt at that particular moment may have been legitimate. But it is the time of her passing which is the operative time for the evaluation: Eckford at para. 51.

[82]        I am also troubled by the fact that Mary put Elizabeth and Norma on the same financial footing at the time of creating her will, when her estrangement from Norma had only just begun, whereas she had not seen Elizabeth for 12 years. This suggests some level of emotional reaction rather than a rational approach.

[83]        In conclusion on this consideration, the following factors lessen the weight that I would otherwise give to Mary’s expressed reasons:

[84]        Norma is not in any pressing financial difficulty, particularly after having received the inheritance from her sister’s estate.

[85]        In relation to Elizabeth, the plaintiffs note that the assessment of entitlement is to be made at the time of Mary’s passing: Eckford at para. 51. At that time, Elizabeth was facing a range of health challenges that the plaintiffs argue could have created financial pressure for her. However, there is little evidence available to suggest this was the case. Although Elizabeth’s income in her last years of life may have been low, it is not known what benefits she may have had, particularly given that it appears she had quite a large pension.

[86]        Norma did make a mistake in pressing so hard for Shawn to be put on title to the Townhouse, given the terms of the declaration of trust. However, I cannot attribute that error of interpretation to misconduct or bad character. She was not a trained legal professional. From a lay person’s perspective, she and Shawn had been paying all the expenses on the Townhouse for many years, and, while perhaps legally mistaken, she might well have thought that this entitled her and Shawn to some stake in the equity of the home. There is no other evidence suggesting Norma engaged in misconduct or is of poor character.

[87]        I have insufficient evidence to say whether Elizabeth engaged in any misconduct or was of poor character.

[88]        There are no competing legal or moral claims here. As noted, there is also no evidence that the defendant charities had any particular relationship or connection to Mary and Albert.

[89]        Having reviewed the Dunsdon considerations, I step back to consider the test more broadly.

[90]        The charities accept that the starting point is that, where competing claims permit, an adult independent child should receive a portion of the estate in the absence of circumstances that would negate the existence of such an obligation: Tataryn at 822-823.

[91]        However, the charities place heavy weight on the plaintiffs’ respective estrangements. They also place substantial weight on the fact that Mary clearly set out reasons for the limited inheritances provided, which the charities argue were “valid and rational”. In their submission, these circumstances negate the existence of any moral obligation.

[92]        Much of the debate during the course of oral argument centred on what result necessarily flows from any finding that expressed reasons for disinheritance are “valid and rational”. There has been a problematic level of variability in the language used in the case law. For example, in Hall at para. 43, the court stated that in order to succeed the claimant must establish that the reasons were “false or unwarranted”, relying on Bell v. Roy Estate (1993), 1993 CanLII 1262 (BC CA), 75 B.C.L.R. (2d) 213 (C.A.) at para. 36. Here, at least some of Mary’s reasons were false, and I do have a concern that several were unwarranted. According to this expression of the test, it is sufficient if one or the other element are met in order to justify potential intervention.

[93]        However, the court in Hall went on to say that “in considering that proposition, it is not necessary to find the reasons were justifiable. It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance”: para. 43, relying on the earlier decision in Kelly v. Baker (1996), 1996 CanLII 1596 (BC CA), 82 B.C.A.C. 150 at para. 58.

[94]        Applying such language to this case arguably heightens the test for intervention, in that Mary’s reasons were at least (to some extent) factually valid, and the charities argued they were rational “in the sense of having a logical connection to the act of disinheritance”.

[95]        But what seems to be missing in a bare application of a “logical connection” test is at least some degree of proportionality. For example, if an adult child on one occasion insulted the testator’s character, that could be argued to create a “logical connection” to a subsequent decision to disinherit. However, complete disinheritance would seem to be a vast overreaction to a single act of defiance. When this example was put to the charities, counsel conceded that when a court is considering whether expressed reasons for disinheritance were “rational”, it is entitled to resort to the concept of community standards, which standards might not be met in the case of disinheritance over a single insult.

[96]        There have been questions raised in the case law about whether the fact that a testator expresses “valid and rational reasons” should completely negate any moral obligation to a child. Madam Justice Dardi in Hancock v. Hancock, 2014 BCSC 2398 summarized the concern as follows:

[97]        I note that the broader expression of the test above from Eckford, a Court of Appeal decision more recent than any of Hall, Bell or Kelly, avoids the troublesome concerns identified by Madam Justice Dardi.

[98]        I am guided by the more recent decision of this court in Kong v. Kong, 2015 BCSC 1669, where the court approached this issue as follows:

[99]        I start my own analysis by returning to the statement of the test in the statute, and the elaboration of the test contained in the highest binding authority, Tataryn.

[100]     The statute states that the will may be varied if it “does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children”. In Tataryn at 821, the court held that the adequacy of the provision must be made in reference to “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards”.

[101]     In Norma’s case, applying the statutory test, the explanation of the test in Tataryn, and considering all of the factors proposed in Dunsdon, I find that society would not reasonably expect a restriction to less than 1% of a $1.1 million estate for an adult daughter who gracefully fulfilled all her duties to her mother for 36 of 38 adult years, including having regular face to face and telephone contact, all in the face of several mean-spirited attacks on both her and her husband. This small percentage is outside the range of acceptable options. Put bluntly, the evidence indicates that her parents were not easy people to satisfy. But Norma generally made best efforts to do so. Her two-year estrangement was triggered by what could, from the perspective of a lay person, be viewed as an honest misunderstanding.

[102]     The size of the estate is adequate to satisfy Mary’s moral obligation to Norma, and the circumstances outlined above do not negate this moral obligation.

[103]     I have carefully considered Mary’s subjective reasons. I find that to the extent it is necessary to find that her reasons were not rational, the test is met, in that they did not reflect community standards, were completely out of proportion to the alleged offences, contained an element of spite, and failed to reflect actual existing conditions. Specifically on the issue of the estrangement, I note that Mary’s later memo acknowledges that “she knows they deeply regret not being in contact for several years”. I conclude that a “judicious” testator in Mary’s position would not have been impervious to this concession by the daughters, and would have taken it as an important move towards reconciliation and forgiveness, particularly in the case of Norma, who had otherwise been very supportive of Mary over many years: Price v. Lypchuk Estate (1987), 1987 CanLII 165 (BC CA), 11 B.C.L.R. (2d) 371 (C.A.) at 381.

[104]     I find the cases relied upon by the charities distinguishable, particularly in relation to Norma. Specifically:

[105]     Reviewing these authorities, and applying the statutory test and Tataryn, I find that the will does not make adequate provision for the proper maintenance and support of Norma.

[106]     Turning to Elizabeth, the situation is materially different. Where a daughter has been estranged for approximately 15 of her 31 adult years, the “late in life” reconciliation was initiated by others, and the depth and effectiveness of reconciliation was unfortunately constricted by her own health problems, I find that society would conclude that a judicious person could reasonably restrain a testamentary gift to a level in the range of that awarded here. This is particularly so where there is, unfortunately, little evidence available to explain the basis for Elizabeth maintaining such a long estrangement. As the plaintiffs conceded in their final argument, “It is not possible for this Court to know the whole story behind the start of the estrangement between Elizabeth and her parents”. On the known facts, I find that any moral duty was negated by the long estrangement, and hence the statutory test to overcome the testamentary intention has not been met.

[107]     Having made the first stage finding that Mary did not make adequate provision for Norma, the next issue is the appropriate level of adjustment. The statute requires that the provision be “adequate, just and equitable”. As the court noted in Dunsdon at para. 131, the same considerations apply, or as the court put it in Tataryn at 814, the two aspects of the test are “two sides of the same coin”.

[108]     The required adjustment is controlled. As Madam Justice Ballance stated in McBride v. Voth, 2010 BCSC 443 at para. 125:

[109]     In assessing the extent the will should be varied, I place weight on the lack of competing moral claims to the estate. In Lamperstorfer v. Plett, 2018 BCSC 89 at paras. 198-212, Madam Justice Donegan reviewed a number of decisions where the portion allocated to parties not owed moral obligations was reduced substantially in favour of moral claimants.

[110]     The plaintiff suggests that if I do not find that an adjustment in Elizabeth’s favour is justified, the appropriate allocation of the residue would be 66% to Norma and 33% to the charities. I find that this would be excessive intrusion into Mary’s testamentary freedom, and is beyond what is necessary. I rely in particular on the following factors:

[111]     Although each case must be decided on its own facts, I found the following cases helpful in my review:

[112]     For the reasons expressed above and guided by the case law, I would still leave the bulk of the residue (after the noted executor gifts) with the charities, or 60%. The remaining 40% should go to Norma in recognition of the moral duties owed to her.

[113]     I note that both estrangements in this case had at their root efforts by parents to support or control their children’s living arrangements. I expect such efforts will become more frequent in the Lower Mainland over the coming years, as young people are increasingly unable to come up with the funds necessary to purchase homes on their own.

[114]     Let this case be a cautionary tale. For the sake of some mild awkwardness at the outset, years of misunderstanding, hurt feelings, grudges, estrangements, and expensive estate litigation may be avoided if the parties to such arrangements record their short and long term intentions in clear and unambiguous language. There is a long term benefit to any short term pain created by providing clarity.

[115]     I order that, pursuant to s. 60 of the Wills, Estates and Succession Act, the residue of the estate be divided 40% to Norma and 60% to the charities collectively.

[116]     If the parties are unable to agree on costs, they may make further written submissions.