IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130919

Docket: S112797

Registry:
Vancouver

Between:

Kathryn Eckford

Plaintiff

And

Rhonda Muriel
Sydney Vanderwood, Executrix and Trustee
of the last Will and Testament of Johan Gerard Van Der Woude
also known as John Garry Vanderwood, Dyan Vanderwood,
Sonja Anne Vanderwood and Tye Moon Vanderwood

Defendants

Before:
The Honourable Mr. Justice Butler

Reasons for Judgment

Introduction

[1]            
This is an action by the plaintiff, Kathryn Eckford, under the Wills
Variation Act, R.S.B.C. 1996, c. 490 (the “Act”), for a
declaration that the will of Johan Gerard Van Der Woude also known as John
Garry Vanderwood (the “Testator”) did not make adequate provision for the
proper maintenance and support of Ms. Eckford. Ms. Eckford seeks an
order varying the will on terms this Court thinks are adequate, just and
equitable in the circumstances.

[2]            
The defendant Rhonda Vanderwood (“Rhonda”) is the Executrix and Trustee
of the estate. The defendant Dyan Vanderwood (“Dyan”) is the testator’s mother.
The other two named defendants are the Testator’s two children.

[3]            
The parties agree that the issues raised in this matter are suitable for
determination by way of summary trial. I am satisfied that I can find the facts
necessary to decide the issues of fact and law, and that it would not be unjust
to do so.

Factual Background

[4]            
The Testator died unexpectedly in a motor vehicle accident on September
4, 2010. He left a will dated September 6, 2005 (the “Will”). In his Will, the
Testator divided the residue of his estate into three shares as follows:

i)    20% to his mother Dyan;

ii)    40% to his daughter Sonja
Anne Vanderwood (“Sonja”); and

iii)   40%
to his son Tye Moon Vanderwood (“Tye”).

The Testator’s Will did not make any provision for Ms. Eckford.

[5]            
The Testator and Ms. Eckford dated as teenagers, but lost
touch when Ms. Eckford moved to Vancouver in 1974. Ms. Eckford
married and had a son, Tyler Eckford (“Tyler”). In 2002, she separated from her
husband. Under the terms of the separation agreement,
Ms. Eckford received $2,500 per month for spousal support until May 2010;
a cabin in Tulameen, B.C. (the “Cabin”); some RRSPs, a 2001 Chrysler Concorde
and a condominium in Langley, B.C. (the “Langley Condo”). Ms. Eckford
agreed with her former spouse that the Cabin should pass on to their son, so
Tyler was registered on title as a joint tenant.

[6]            
The Testator separated from his wife on January 1, 2004. Following the
separation, the Testator and Ms. Eckford redeveloped a romantic
relationship. At the time, Ms. Eckford was living in Langley, B.C. and the
Testator was residing in Kamloops, B.C.

[7]            
In June 2006, Ms. Eckford moved to Kamloops to reside with the
Testator in his home (the “Glenshee House”). Before moving to Kamloops, Ms. Eckford
sold the Langley Condo. Ms. Eckford also gave up two part-time jobs: an
administrative position with Shoppers Drug Mart and a position with the school
district. Upon moving to Kamloops, Ms. Eckford attained an on-call
secretary position with the Kamloops School District. She worked in this
position full-time from September 2008 to the end of June 2010.

[8]            
The Testator and Ms. Eckford kept their finances separate, although
they agreed to be jointly responsible for bills. When Ms. Eckford moved to
Kamloops, they agreed she would purchase a one-half interest in the Glenshee
House for $150,000 which was considered to be the fair market value of that
interest. In August 2006, Ms. Eckford paid $50,000 towards her interest in
the Glenshee House. The Testator used this money to pay off the mortgage debt
registered against the property. In January 2009, Ms. Eckford paid the
remaining $100,000 and became registered on title as a joint tenant with the
Testator.

[9]            
In July 2006, the Testator quit his job as the business manager at the
Kamloops Ford Lincoln dealership. He was having knee replacement surgery in the
fall and was unsure when he would be able to return to work. Following the knee
surgery, the Testator suffered from numerous health complications including
Hepatitis C, kidney stones and a stroke. As a result of the health
complications, the Testator was unable to return to full-time work but was able
to work part-time on a sporadic basis. In 2008, he worked for Ian Haggerty
maintaining and restoring boats. In 2009, he worked briefly for the Chrysler
dealership. In the spring of 2010, he worked at the B.C. Liquor distribution
warehouse. The Testator continued this part-time work until he died in
September 2010.

[10]        
Upon the Testator’s death, Ms. Eckford received the Testator’s
half-interest in the Glenshee House through her right of survivorship. The
probate documentation shows a gross value of $401,397.01 for the assets in the
estate to be distributed pursuant to the Will. The principle assets are a
rental property located in Kamloops, B.C. (the “Fernie Property”) valued at
$240,000 and approximately $112,000 in RRSPs. The net value of the estate is
currently estimated at $283,396 after expenses and liabilities.

[11]        
The main issue I must determine is whether the Testator’s disposition of
his assets provides for the proper support and maintenance of Ms. Eckford.

[12]        
I commence my analysis by setting out the position of the parties. I
then set out the legislation and law relating to claims under the Act.
Finally, I apply the law to the facts and circumstances of this case. When I do
that, I conclude that there is no basis upon which to interfere with the
Testator’s Will. Accordingly, for the reasons that follow, Ms. Eckford’s
application is dismissed.

Position of the Parties

[13]        
Ms. Eckford argues that the Will should be varied to have the
entire residue of the estate left to her. She submits that the Testator has
both a legal and moral obligation to provide for her. Ms. Eckford says the
moral claims of adult self-supporting children are secondary to those of a
spouse.

[14]        
Ms. Eckford submits that she supported the Testator financially
after he stopped working in 2006, and cared for him throughout his various
medical maladies. When the Testator was ill and disabled, she maintains that
she acted as his caregiver. Ms. Eckford says that she is now permanently
disabled and cannot work. As a result, she argues that the residue of the estate
should provide support for her living expenses.

[15]        
Ms. Eckford argues that this Court should not give much weight to
the fact that she received the Testator’s half interest in the Glenshee House
because she paid for the other half interest. Ms. Eckford stresses that if
she passed away before the Testator, her interest in the Glenshee House would
have passed to him.

[16]        
The defendants, Dyan, Sonja and Tye (the “defendants”) argue that taking
into account the short duration of the relationship and the relative financial
circumstances of the parties, the Testator made adequate provision for Ms. Eckford.
The defendants submit that the evidence does not support a finding that Ms. Eckford
provided significant caregiving services to the Testator. While the Testator
could not maintain full-time employment because of his medical issues, he did
not require a caregiver. Indeed, he remained active throughout his relationship
with Ms. Eckford.

[17]        
The defendants also say they all have real financial need. Further,
statements that the Testator made to Sonja about his Will created an
expectation that she and her brother would receive a significant portion of the
estate. The defendants argue that this expectation increases the moral duty of
the Testator to provide for his children.

[18]        
The defendants say there is no evidence that Ms. Eckford is facing
financial hardship. The defendants stress that by receiving the Testator’s half
interest in the Glenshee House, Ms. Eckford effectively received more than
one-third of the value of the estate. The defendants say this is more than
sufficient in the circumstances of this case.

Legislation and Law

[19]        
Ms. Eckford’s application is brought pursuant to s. 2 of the Act,
which states:

2    Despite any law or statute
to the contrary, if a testator dies leaving a will that does not, in the court’s
opinion, make adequate provision for the proper maintenance and support of the testator’s
spouse or children, the court may, in its discretion, in an action by or on
behalf of the spouse or children, order that the provision that it thinks
adequate, just and equitable in the circumstances be made out of the testator’s
estate for the spouse or children.

[20]        
The leading case on the interpretation of this section is Tataryn v.
Tataryn Estate, [1994] 2 S.C.R. 807. In Tataryn, the Court held that
the first consideration under s. 2 is the testator’s legal obligations
viewed from the date immediately before his or her death. Legal obligations are
those obligations imposed on a person by law during their life. Where provision
for a spouse is in issue, a testator’s legal obligation is derived from what
would have happened upon marriage breakdown. In Tataryn, the Court held
at para. 30:

The legal obligations which
society imposes on a testator during his lifetime are an important indication
of the content of the legal obligation to provide “adequate, just and equitable”
maintenance and support which is enforced after death.

[21]        
The second consideration is the testator’s moral duties. Moral
claims are society’s reasonable expectations of what a judicious person would
do in the circumstances. A moral duty to provide for an adult child may arise
if there is an assured or implied expectation on the part of the adult child;
the financial circumstances of the adult child create a need; there are
probable future difficulties for the child; or the size of the estate permits
such a claim: Clucas v. Clucas Estate (1999),
25 E.T.R. (2d) 175 (B.C.S.C.). In Tataryn, the Court held at para. 31:

While the moral claim of
independent adult children may be more tenuous, a large body of case law exists
suggesting that, if the size of the estate permits and in the absence of circumstances
which negate the existence of such an obligation, some provision for such
children should be made [citations omitted]

[22]        
Tataryn makes it clear that there may be a number of different
ways to dispose of assets which are adequate, just and equitable. Provided that
the testator has chosen an option which falls within this range, the will
should not be disturbed.

Analysis

The Testator’s Legal Obligations

[23]        
Sonja and Tye are independent adult children. As such, the Testator does
not have a legal obligation to maintain and support them.

[24]        
The Testator’s mother, Dyan, is 80 years old. She has approximately
$66,000 in savings and does not own any real property. In 2012, her annual
income was $21,761.87. Dyan does not earn enough money to cover her monthly expenses.
Prior to his death, the Testator was providing his mother with $200 per month
to assist her with her living expenses.

[25]        
At the time of the Testator’s death, s. 90(2) of the Family
Relations Act, R.S.B.C. 1996, c. 128 provided:

(2)  A child is liable to
maintain and support a parent having regard to the other responsibilities and
liabilities and the reasonable needs of the child.

Pursuant to s. 90(2), the Testator had a potential
legal obligation to provide for his mother immediately before his death.

[26]        
The Act defines a spouse as a person who is married to the
testator, or has lived in a marriage-like relationship with the testator for at
least two years. It is not contentious that Ms. Eckford was living in a
marriage-like relationship with the Testator for approximately four years prior
to his death. Therefore, Ms. Eckford satisfies the definition of “spouse”
under the Act.

[27]        
In deciding whether the Testator made an adequate provision for Ms. Eckford,
the Court needs to examine the Testator’s legal obligation to Ms. Eckford
immediately before his death. This is best analyzed by looking at what Ms. Eckford
would have been entitled to if the parties split up right before the Testator’s
death. Given that Ms. Eckford was a common law spouse, her claim to any
property would fall under the principles of unjust enrichment or trust.

[28]        
The evidence establishes that Ms. Eckford and the Testator
shared expenses throughout their relationship. Ms. Eckford deposes that
when the Testator was not working, she paid most of the bills. However, she
stated they never kept track of who was paying for what as they intended to
treat all expenses as joint liabilities. I find that the Testator continued to
contribute to household expenses when he was unemployed. The Testator was able to pay bills using the money he
received from Ms. Eckford from the sale of the half interest in the
Glenshee House. A review of the Testator’s bank records shows that he paid
utilities, including cable, as well as property taxes from 2006 to 2010.

[29]        
There may have been instances where Ms. Eckford contributed a
little more in some months, however, the evidence falls short of establishing
that she financially supported the Testator in any way. Further, there is no
evidence that Ms. Eckford made any contribution to the Glenshee House
during the cohabitation over and above what any half owner would have
contributed. Accordingly, Ms. Eckford has not established a claim to the Testator’s
interest in the Glenshee House on the basis of unjust enrichment or a
constructive trust in her favour. Ms. Eckford concedes that upon
separation, she would not have been entitled to any share in the Fernie
Property.

[30]        
I will next consider whether the Testator would have been obliged to pay
Ms. Eckford spousal support if they separated immediately before his
death. The Testator’s income from 2006 to 2010 was as follows:

[31]        
Ms. Eckford’s income from 2006 to 2010 was:

[32]        
Throughout Ms. Eckford and the Testator’s cohabitation, Ms. Eckford
earned substantially more than the Testator. While a considerable portion of
her income came from the spousal support which ended just before the Testator’s
death, even without those support payments she earned between $15,000 and
$35,000 per year. Additionally, Ms. Eckford had assets, including the
Cabin and RRSPs, to remain self-sufficient. Ms. Eckford was not a
dependent spouse. In these circumstances, Ms. Eckford would have had
little or no entitlement to spousal support if she and the Testator had
separated prior to his death.

[33]        
Ms. Eckford argues that following the Testator’s death, there has
been a significant change in her circumstances. Due to various medical
ailments, she has become disabled and will be unable to return to work in the
future. Ms. Eckford deposes that following her bereavement leave, she
returned to work two days per week from January to June 2011. She left work in
mid-June due to an infection in her lungs, and remained on sick leave until she
was laid off at the end of the month. Since that time, she has not returned to
work.

[34]        
Ms. Eckford currently earns $980 per month: $500 in CPP disability
benefits and $480 from a Government of Canada widow’s pension. Ms. Eckford
argues that she is experiencing financial hardship as this income is not
sufficient to cover her monthly expenses. She says her monthly expenses greatly
exceed her income. Ms. Eckford says that she sold the Glenshee House in
2011 to pay her debts and living expenses, and is currently residing in the
Cabin.

[35]        
Ms. Eckford says she had diabetes and other medical problems before
the Testator’s death. She submits it should have been reasonably foreseeable to
the Testator that she may not be able to work in the future and would require
financial support. Further, Ms. Eckford argues this Court may take into
account the significant change in her circumstances when determining whether
she has been adequately provided for. In support of her position, Ms. Eckford
relies on Landy v. Landy Estate (1991), 60 B.C.L.R. (2d) 282 (C.A.) where
the court stated at 292-293:

On the basis of the foregoing
analysis I have concluded that a substantial change in the circumstances of a
person entitled to make a claim under the Wills Variation Act, or of a
beneficiary, between the date of death of a testator and the date of trial, is
a circumstance which may be taken into consideration when a court is
determining, under the second stage of the two stage process involved in
s. 2(1) of the Act, the provision that should be made for a claimant that
is “adequate, just and equitable in the circumstances”.

[36]        
In Landy, the primary beneficiary under the testator’s will was
his second wife Ms. Landy. A claim was made under the Act by the
testator’s only son. Between the testator’s death and trial, Ms. Landy
passed away. The combined effect of the testator’s will and the provisions in Ms. Landy’s
will was that Ms. Landy’s five children would receive the majority of the
testator’s estate. The court found that Ms. Landy’s children had no moral
entitlement to a share in the testator’s estate and that the testator’s son was
not adequately provided for. Accordingly, the court viewed Ms. Landy’s
death as a substantial change in circumstances and increased the bequest to the
testator’s son from $10,000 to $60,000.

[37]        
In the circumstances of this case, I find that it was not reasonably
foreseeable to the Testator that Ms. Eckford would be unable to support
herself. The Testator would have been aware that Ms. Eckford suffered from
hypertension, asthma and diabetes. These conditions predated the Testator’s
death. However, Ms. Eckford was functioning very well. She had just turned
56 years old when the Testator died and she was employed by the Kamloops School
District. There is no evidence to suggest that Ms. Eckford missed work or
struggled because of health issues prior to the Testator’s death. It was
reasonable for the Testator to assume that Ms. Eckford would be able to
continue to provide for herself for several years.

[38]        
I also find that the evidence falls short of establishing that Ms. Eckford
is suffering from financial hardship. Ms. Eckford deposes that she has the
following assets:

[39]        
At para. 109 of Ms. Eckford’s affidavit dated November 15,
2012, she deposes that she gave her son Tyler $25,000 towards his wedding. She
states that this amount is “repayable when he can”. Accordingly, the assets are
understated by $25,000.

[40]        
The income Ms. Eckford currently derives from CPP disability
benefits and her window’s pension are insufficient to cover her monthly costs.
However, Ms. Eckford has assets available to supplement her income. While
her financial situation is not ideal, I conclude that she overstates the degree
to which she is struggling. I am fortified in this conclusion by the fact that Ms. Eckford
loaned her brother and son a combined $125,000 interest-free. These are not the
actions of someone who is facing significant hardship.

[41]        
Finally, I cannot accept Ms. Eckford’s argument that her current
medical condition and inability to work is a circumstance that I can take into
account at this stage of the analysis. In Landy, the court was able to
look to events that occurred after the testator’s death because it decided at
the first stage of the analysis that the testator had not made adequate
provision for his son. Of course, as the court stated at 289, the appropriate
date to consider whether adequate provision was made is the date of death:

In my view the weight of judicial
authority supports the conclusion that the relevant date to be used in
determining whether a testator has made adequate provision for the proper
maintenance and support of a dependant is the date of the death of the
testator. In reaching that determination a court should take into consideration
the circumstances existing and reasonably foreseeable to the testator as at
that date.

[42]        
Having decided that the testator had not made adequate provision, the
court in Landy concluded that it could consider the death of the
testator’s wife as a “substantial change in the circumstances of a person
entitled to make a claim” at the second stage of the analysis. Here, I need not
go to the second stage of the analysis as I have determined that the Testator
did make adequate provision for Ms. Eckford based on his legal and moral
obligations at the date of his death.

The Testator’s Moral Obligations

[43]        
There is no doubt that the Testator owed a moral obligation to his
children, Sonja and Tye, and his mother. Although Sonja and Tye are independent
adults, both have financial need. Sonja is currently 28 years old. She is
enrolled in a full-time program at the British Columbia Institute of
Technology. She will not write her final exams until February 2015.

[44]        
Sonja is paying for her program through the use of a line of credit,
student loans and loans from family members. Sonja currently owes family
members about $28,000. She also owes $3,100 on her line of credit and $8,920 in
student loans. Sonja is the registered owner of a property in Kamloops, however
there is little to no equity in the property. Other than a 2001 Honda Civic,
Sonja has no other significant assets.

[45]        
Tye is 36 years old. He is a self-employed furniture mover and resides
in Montreal with his girlfriend and her two children. Tye does not have any
secondary or post-secondary education. From 2009 to 2011, Tye was unemployed
and received welfare. In 2012, he earned $15,705 as a furniture mover. He does
not own any real property or have any savings.

[46]        
Sonja says that she and her brother had an expectation they would
receive some of the estate because of comments made by her father about his
Will. Sonja deposes:

During numerous discussions with
my Dad, he advised me that my brother, Tye Moon Vanderwood, and I would each be
receiving a portion of the Fernie Property when he died. My Dad also advised me
that he had money in a RRSP, and that if anything were to happen to him my
brother and I would be taken care of from this.

[47]        
Sonja’s evidence is consistent with the actions of the Testator and the
evidence of Gary Woitas. Mr. Woitas is the lawyer the Testator retained to
transfer the Glenshee House into joint tenancy in 2009. Mr. Woitas deposes
that during the course of the transaction, he spoke to the Testator about his
Will. The Testator confirmed he would not be changing his Will, but would be
providing for Ms. Eckford by transferring the property into joint tenancy.

[48]        
I am satisfied that Sonja had a valid expectation that she and Tye would
receive a portion of her father’s estate. This expectation increases the moral
claim Sonja and Tye have to the Testator’s estate.

[49]        
I also find that Dyan has a moral claim against the Testator’s estate.
As previously mentioned, the Testator’s mother has significant financial need.
Without contributions from family members, she would have difficulty meeting
her living expenses each month.

[50]        
Ms. Eckford argues that she has a high moral claim to the Testator’s
estate because she was the Testator’s caregiver when he was ill and disabled. Ms. Eckford
deposes:

Throughout Gary’s illnesses and
medical problems, I was his caregiver. In particular, I nursed Gary through all
of his illnesses, cooked and brought him his food, obtained his medications,
drove him where he wanted to go when he was able to go out, and did everything
I could to keep him as comfortable and well cared for as possible.

[51]        
The Testator suffered from health problems following his knee surgery in
2006, which limited his ability to work. At best, the Testator was only able to
maintain part-time employment. However, I conclude that Ms. Eckford did
not provide significant caregiving services to the Testator during the time
they were together. In other words, she did not provide caregiving services
over and above those usually provided by spouses at that stage of their lives. It
is likely that he relied on her for support and assistance after suffering from
Hepatitis C in 2007 and after his stroke and knee surgery. Nevertheless, the
Testator remained mobile and active during his time off from work.

[52]        
From 2006 to 2010, the Testator went on numerous trips both with and
without Ms. Eckford. These included trips to:

a)       Tulameen in November and
December 2006;

b)       Montreal in June 2007;

c)       Palm Springs in July 2007
and November 2007;

d)       London, England in December
2007;

e)       Alaska in January 2008;

f)        London, England in
September 2008;

g)       Snowmobile trip in January
2009;

h)       Montreal in November 2009;
and

i)        Palm
Springs in June 2010.

[53]        
The trip to Palm Springs in 2010 was a motorcycle trip which the
Testator took with Sonja. He rode his motorcycle for up to eight hours per day
with her as a passenger. His level of activity in these years and the fact that
he continued to do a modest amount of part-time work strongly suggests that he
was not dependant on Ms. Eckford as a caregiver.

[54]        
Even though the evidence falls short of establishing that Ms. Eckford
provided significant caregiving services to the Testator, I find that Ms. Eckford
also has a moral claim to the Testator’s estate. The Testator and Ms. Eckford
lived in a marriage-like relationship for four years. Ms. Eckford was the
Testator’s companion and stood by his side throughout his various medical
maladies. Society would expect a judicious person in the Testator’s
circumstances to make some provision for Ms. Eckford.

[55]        
Ms. Eckford’s interest in the Glenshee House, even though it passed
outside of the Will, is relevant when determining whether the Testator made
adequate provision for her support and maintenance: Viberg v. Viberg,
2009 BCSC 27 at paras. 41-42. Taking into account the Testator’s legal
obligation to provide for Dyan, and his moral obligations to provide for his
mother, children and Ms. Eckford, I find that the Testator made adequate
provision for Ms. Eckford by leaving his interest in the Glenshee House to
her by way of survivorship.

[56]        
Rhonda deposes that the Testator’s estate, after paying various
expenses, is currently valued at $283,396. Accordingly, Tye and Sonja will
receive approximately $113,000 under the Will while Dyan will receive about
$57,000. Ms. Eckford, in obtaining the Testator’s half interest in the
Glenshee House, received more than $150,000. This is a significant portion of
the Testator’s estate. Given the length of the relationship, the fact that Ms. Eckford
was not a dependant spouse, and the competing moral claims, I find that the
Testator disposed of his assets “within the wide range of options, any of which
might be considered appropriate in the circumstances.”: Tataryn at para. 33.
When a disposition falls within that range, even if it is at the lower end, a
court should not vary the will, as a testator’s freedom to dispose of his
property is not to be interfered with lightly.

Conclusion

[57]        
I find that the Testator’s disposition of his assets made adequate
provision for the proper maintenance and support of Ms. Eckford.
Accordingly, Ms. Eckford’s claim is dismissed.

Costs

[58]        
The defendants argue that they should be entitled to costs from Ms. Eckford.
Ms. Eckford opposes that and says she should be entitled to special costs
from the estate regardless of the outcome of the litigation because of the
manner in which the Testator chose to dispose of his assets. She says that by
leaving nothing to his spouse in the Will, the Testator was inviting
litigation. Ms. Eckford relies on the decision in Champoise v. Prost,
2000 BCCA 426 in support of that proposition.

[59]        
Ms. Eckford also argues that it is not uncommon to order the costs
of all parties payable out of the residue of the estate and refers to the
decision in Collett Estate (Re), 2005 BCCA 291.

[60]        
Ms. Eckford’s suggestion that it is common to order costs out of
the estate is an oversimplification of the jurisprudence. In Collett, the
court quoted with approval from Turner v. Andrews (1999), 23 C.C.P.B. 84
(B.C.S.C.) at para. 7, where Allan J. summarized the costs principles. She
referred to English authority which set out the entitlement to costs in three
classes of cases. Where an executor or trustee is required to seek the court’s
guidance in interpretation of a will or there are difficulties with
construction or administration of a trust, the costs of all parties are paid by
the estate as the litigation was incurred for the benefit of the estate.
However, Turner described a third class of case where a beneficiary was
not entitled to costs from the estate:

An application made by the
beneficiaries who make claims adverse to other beneficiaries. Such litigation
is adversarial in nature and, subject to the Court’s discretion, the
unsuccessful party bears the costs of those whom he or she brings to Court.

[61]        
There is no question that this case falls into that third class of
cases; Ms. Eckford, a potential beneficiary, made claims adverse to
others. She was unsuccessful. In this circumstance, it would be unusual for her
to be awarded costs from the estate and I will not make that order here. The
remaining question is whether she should bear the costs of those whom she
brought to court.

[62]        
In Jung v. HSBC Trust Company (Canada), 2007 BCSC 1740, Silverman
J. summarized the law relating to costs in estate litigation and noted at para. 106
that in cases involving dependants’ relief legislation, the usual rule is that
costs follow the event. Of course, costs awards are always subject to the
court’s discretion and the overriding test of reasonableness.

[63]        
In my view, there are two factors here which I must consider in deciding
whether to award costs payable by Ms. Eckford. First, there is some merit
to the argument that the Will invited litigation. While the present case is
quite different from Champoise, where the situation was complicated by
the existence of secret trusts, the Testator left Ms. Eckford, his common
law spouse, out of the Will. I determined that he made adequate provision for
the proper maintenance and support of Ms. Eckford given the legal and
moral obligations existing as of his death. However, the Testator’s legal and
moral obligations to her would have increased the longer they were together. At
some point in time, if the Will was not changed, the disposition of his assets
may well have been found to be inadequate. Accordingly, while I cannot conclude
that the Will “promoted litigation”, it did raise the issue which Ms. Eckford
brought to court.

[64]        
The second factor which is significant is that Ms. Eckford suffered
a significant change in her personal circumstances after the Testator died. She
is now unemployable as a result of her present medical condition. Without that
change in her condition, it is unlikely this claim would have been advanced.
Her financial situation is more difficult than either she or the Testator would
have foreseen.

[65]        
In Davey v. Gruyaert, 2007 BCCA 20, the court was faced
with somewhat similar circumstances. The plaintiff claimed a share of the
deceased’s estate on the basis that she was a common law spouse. The trial
judge dismissed her claim but awarded costs to her from the estate on the basis
that she had reasonable grounds for the claim. The Court of Appeal upheld the
trial decision dismissing the claim but overturned the trial judge’s decision
on costs. The plaintiff was denied costs from the estate as that would have
diminished the estate’s assets. However, the claimant was not ordered to pay
the estate’s costs.

[66]        
In the circumstances of this case, I will make a similar order. The defendants
are entitled to have their costs paid as special costs from the estate. Their
claim for costs from Ms. Eckford is dismissed. Ms. Eckford is not
entitled to costs from the estate; she must bear her own costs.

Summary

[67]        
Ms. Eckford’s claim under the Wills Variation Act is
dismissed. The defendants are entitled to have their costs paid as special
costs from the estate. Ms. Eckford’s claim for costs from the estate is
dismissed.

“Butler J.”