Lack of disclosure leads to challenge to will

As Justice Greyell notes early in the judgment, “The background of this case is one of family tragedy from a number of perspectives.” The testator, Roland Boyd Strom, was a logger who was often absent from home. He had two sons by different mothers and only partially participated in the rearing of one, known as Ewen. Meanwhile, Jacob, the other son, was raised by his mother and his stepfather, whom Jacob had believed to be his biological father until he was a teenager. After being informed that Roland was his birth father, he made efforts to contact him, but without success as Roland died in 2010, before Jacob’s enquiries led to a connection.

Roland’s estate provided that Ewen and Roland’s sister, Wendy, were to share equally in the estate. However, after Roland’s death, it was discovered that Ewen suffered from kidney disease and would likely need additional support in the future. Following a court application by Ewen’s mother, who had already given Ewen a kidney, Wendy agreed to split the estate 80%/20% in Ewen’s favour. However, Ewen died intestate at 18, before he could inherit his share of the estate. The full value of the estate was about $600,000.

In late 2012, Wendy became aware of Jacob’s existence and contacted him using Facebook. Jacob did not respond until July 2013, noting at that time that he knew nothing about his birth father and that he was “in need of answers.” Genetic testing confirmed Jacob’s connection. Jacob received documents from Wendy’s estates lawyer in late 2013, asking him to fully release his right to participate in Roland’s estate. He did not sign the documents. He said he knew that Ewen was to receive 80% of the estate and “felt that Ewen deserved the money given his health.” Ewen died in late 2014.

In January 2015, Wendy and Jacob had a text message exchange that was reproduced in the judgment. It paints of picture of Jacob’s attempts to connect and Wendy’s efforts to end the entire relationship.

“I threw out that paper you very sneakily tried to get me to sign to give up all claims I’d have on my father’s estate and it would of (sic) left me with nothing if I wanted to contest you and the will,” Jacob’s final text message says. “Which apparently is going to happen now that your (sic) shutting down, and trying to drop me like a bad cough. We shall see it all come to light one day, soon or far I’m patient.”

Jacob brought a court application in late 2016 seeking an order that the will be varied to provide him with an “adequate, just and equitable provision from Roland’s estate,” the decision says. The main position of the estate was that Jacob was well outside the applicable six-month limitation period allowed for will challenges under the B.C. Wills Variation Act (WVA). (The period begins to run from the date of probate, in this case, 2013.)

The estate also argued that Jacob’s delay led Wendy and others to act to their own detriment, such as by incurring estate-related debts (a principle known as promissory estoppel). In response to the latter argument, Jacob consented to the distribution of $200,000 out of the estate prior to the court hearing.

Justice Greyell concluded that the estate’s request to distribute the estate should be denied. He found that a provision in the WVA permitting other “persons” to join in an action against an estate, if such an action has been commenced, should apply to Jacob: the action in this case was the application by Ewan’s mother to vary the will. If Jacob had had more information, he may have joined in that action, the decision notes.

In his concluding remarks, Justice Greyell took the view that Wendy and her counsel failed to communicate key information to Jacob at a time when he was struggling with many difficult issues, such as learning of his parentage and his father’s and brother’s deaths. The court also concluded that the $200,000 payout dealt with the issues of prejudice to Wendy and the estate.

“Neither the letter from estate counsel nor the Disclaimer and Release sent to [Jacob] for signature made any reference to the size of Roland’s estate,” the decision notes. “Had they done so, it is quite possible Jacob’s response would have been different than to stand by and do nothing. From what he did know of Roland’s circumstances he could certainly infer that there would not have been much substance to his estate.”

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