Crowley v. Walkhouse,


2008 BCSC 319

Date: 20080314
Docket: 25772
Registry: Penticton


Barry Crowley



Kathy Walkhouse, Rose Isaac, Phil Baccus, John Baccus, Marion Crowley, St. Anne’s
Catholic Church and Bryant Edward Sole, Executor of the Estate of Elizabeth Marie
Crowley also known as Lillian Crowley also known as Lillian M. Crowley, Deceased


Before: The Honourable Mr. Justice Rogers

Reasons for Judgment

Counsel for the Plaintiff:

A. Elliott

Counsel for the Defendants, R. Isaac, P. Baccus, J. Baccus, M. Crowley and St. Anne’s Catholic Church:

G.L. Harrison

Counsel for the Defendant, B.E. Sole:

M. Welsh

Date and Place of Hearing:

March 11, 2008


Kelowna, B.C.


[1]                The issue in this summary trial is whether the 70-year-old plaintiff should receive more than a one-quarter share of his late mother’s $1 million estate.  The plaintiff and the testator were estranged, and at all material times, the plaintiff was economically self-sufficient.  He was, however, the testator’s only child.

The Facts

[2]                The plaintiff’s mother was Lillian Crowley.  She and Harvey Crowley were husband and wife; the plaintiff is their only child.  The plaintiff had an unhappy childhood.  He attributes his unhappiness to his having attended a Catholic school and to his mother’s strict discipline.  His mother was a devout Catholic.  He developed a profound dislike of the Catholic Church and the Catholic religion.

[3]                Mr. and Mrs. Crowley were people of modest means.  In or around 1988, they moved from B.C.’s lower mainland to the interior town of Osoyoos.  They bought a house there.  The plaintiff had already settled in the same area.  The plaintiff got along better with his father than he did with his mother.  The result was what the plaintiff characterized as an “on again, off again” relationship with his parents.  The plaintiff occasionally gathered firewood with his father and from time to time helped him with yard work.

[4]                Mr. Crowley died in 1996.  Whatever assets he had then passed to Mrs. Crowley via joint survivorship.  Mrs. Crowley decided to move out of the house that the couple had occupied.  She intended to move into a condominium.  Mrs. Crowley determined to sell her late husband’s tools.  The plaintiff took great offence at this.  He thought that the tools ought to have gone to him.  There was, however, no evidence that Mrs. Crowley was aware of the plaintiff’s expectations with respect to the tools or that, before he died, Mr. Crowley had said anything to her about their disposition.  The plaintiff asserts that his mother’s decision to sell the tools was motivated by her desire to “control him”.  By this, the plaintiff seems to mean that Mrs. Crowley wished to upset her son by disposing of things she knew that he wanted.  Rather than control, the plaintiff’s theory seems to be that his mother was motivated by spite and a desire to injure his feelings.

[5]                Whether that is true, or whether Mrs. Crowley sold the tools simply because she had no place to keep them after her move, the end result of the event was a total estrangement between the plaintiff and his mother.  The plaintiff had no dealings with his mother, and did not see her, for the remaining ten years of her life.  During those ten years, Mrs. Crowley moved from her condominium into an assisted living facility; attended her church where she was a devoted parishioner, made friends with her accountant, Mr. Sole, and asked him to be the executor of her estate; had visits with her niece and nephews who traveled from California to visit her; was diagnosed with a serious illness and asked Mr. Sole to accept her power of attorney; and eventually died at age 92 and was buried in the ground.

[6]                The plaintiff did not participate in any of these aspects of Mrs. Crowley’s life, and he did not attend her funeral.

[7]                Mrs. Crowley’s estate is worth on the order of $1 million.  If her Will remains undisturbed, the estate will be divided thus:

▪           25 percent to the plaintiff;

▪           25 percent to the plaintiff’s daughter, Kathy Walkhouse;

▪           10 percent to the Catholic Church where Mrs. Crowley worshipped;

▪           10 percent to her niece, Rose Isaac;

▪           10 percent to her nephew, Phil Baccus;

▪           10 percent to her nephew, John Baccus; and

▪           10 percent to her former sister-in-law, Marion Crowley.

[8]                The plaintiff left home when he was 15 years old.  He did not lead a blameless life.  He admits to having spent time in a youth reform center, and having served jail time in the Oakalla jail and the B.C. Penitentiary.  He did not say what crimes he committed.  The plaintiff has also been convicted and fined for not filing income tax returns.  The plaintiff has worked at labouring jobs all of his life.  Notwithstanding these negative aspects of his life, the plaintiff was able to secure his finances such that he was able to stop working at around age 55.  The plaintiff owns three properties:  a home in Osoyoos worth ~$132,000; a piece of bare rural land worth ~$57,000; and 137 acres of rural land with a house worth ~$314,000.  The plaintiff has a RIF worth $18,000 and cash savings of some $85,000.  He has no debts.  The plaintiff’s income is about $1,000 per month, comprised of a pension and Old Age Security and about $450 in rent that he receives from the tenant on his 137‑acre parcel.  The plaintiff is not troubled by money difficulties.  In his examination for discovery, this exchange took place:

212      Q         So am I right that you’ve been living on about $1,000 month since 1995?

A          Probably.  As I say, I don’t keep track of it.

That the plaintiff’s claim for a greater share of his mother’s estate is not based on economic need is confirmed by this exchange in the plaintiff’s discovery:

347      Q         So -- all right.  I just want to be clear that I understand this then.  Your position with regard to this litigation is not driven by economic need on your part?  It’s driven by the principle of these boot strap relatives who your mother hardly knew getting money.  And the Catholic church, which you heartedly dislike, getting money; is that correct?

A          Yes.

[9]                The beneficiaries, Rose Isaac, Phil Baccus and John Baccus, are the niece and nephews who visited Mrs. Crowley in Osoyoos after the plaintiff’s relationship with her completed disintegrated.  Ms. Marion Crowley was Mrs. Crowley’s sister-in-law, and they enjoyed a good relationship.  St. Anne’s Catholic Church is where Mrs. Crowley regularly worshipped.

[10]            The beneficiary Kathy Walkhouse is the plaintiff’s adult daughter.  She is Mrs. Crowley’s granddaughter.  Ms. Walkhouse was put out for adoption in her infancy.  Neither the plaintiff nor Mrs. Crowley had a close relationship with Ms. Walkhouse; although it is plain that Mrs. Crowley knew of her because she made provision for Ms. Walkhouse in her Will.  The evidence in the summary trial offered no details of Ms. Walkhouse’s circumstances.

The Parties’ Positions

The Plaintiff

[11]            The plaintiff says that his mother had a moral obligation to make a greater than one-quarter gift to her only child.  He maintains that the reasonable expectations of society are such that he should receive at least a one-half share of the estate.  According to him, a gift of 50 to 60 percent of the estate would satisfy society’s expectation that his mother would act judiciously and would still leave substantial gifts to the other beneficiaries.

The Defendants Except Ms. Walkhouse

[12]            The majority of the defendants agree that Mrs. Crowley had a moral obligation to provide for her son.  They say that Mrs. Crowley could have satisfied that moral obligation, and so met society’s reasonable expectations, by making a provision for the plaintiff that lies within a range of gift sizes.  They argue that it is incorrect for the plaintiff to fixate on 50 or 60 percent of the estate; they say, instead, that the court must consider all the circumstances of the case and consider whether, on the whole, Mrs. Crowley’s provision for her son lies within that reasonable range.  If it does, then the court ought not to disturb Ms. Crowley’s Will, even though the court might consider the provision to be at one end or the other of the applicable range.

[13]            Their position is, not surprisingly, that the gift to the plaintiff of a one-quarter share in the estate does lie within the range of society’s reasonable expectations.  There is, in their submission, no reason to disturb Ms. Crowley’s Will.

Ms. Walkhouse

[14]            Ms. Walkhouse has indicated that she is prepared to agree to vary the Will so that the beneficiaries (including herself) other than the plaintiff receive $10,000 and that the plaintiff receive the balance of the estate.  The other beneficiaries are not, of course, in agreement with that proposal.  Ms. Walkhouse advanced no argument in favour or against any other plan for distribution of the estate.


The Law

[15]            The plaintiff has brought his claim under the Wills Variation Act, R.S.B.C. 1996, c. 490.  The plaintiff relies on s. 2:

2          Despite any law or statue 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.

As the deceased’s only child, the plaintiff is the only person with standing to advance a claim under the statute.

[16]            The starting point for any discussion of the Wills Variation Act in B.C. is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807.  In that case, the plaintiff was the testator’s wife of 43 years.  The testator did not wish for J, who was one of the couple’s two sons, to benefit from his estate.  The testator feared if he left anything to the plaintiff absolutely then she would, in turn, make a gift to J.  So the testator hobbled his provision to the plaintiff.  He gave her a life estate and made her the beneficiary of a discretionary trust.  The Supreme Court of Canada varied the Will so as to give the plaintiff title of the matrimonial home, a life interest in a rental property, and the residue of the estate after specific gifts of $10,000 to each of the sons.  The court also ordered that J, the son who the testator disliked, would receive one-third of the rental property when the plaintiff died.  The favoured son was ordered to receive two-thirds of the rental property.

[17]            In coming to its conclusion, the Supreme Court articulated a number of important principles bearing on whether a Will’s provision makes “adequate, just and equitable” provision.  The court said that the first considerations are the testator’s legal responsibilities during his or her lifetime.  Those responsibilities include legal duties to support a spouse or child, and extend to encompass trust obligations as well (Tataryn at ¶29-30).  Next, the court said that the testator may be subject to “moral claims” (Tataryn at ¶31).  These are claims that sound in conscience, but are not, in the absence of relief on offer under the Act, actionable.  Claims by non-dependent spouses and independent adult children fall into this latter category.  The measure of these “moral claims” is society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards (Tataryn at 28).

[18]            The Supreme Court acknowledged that a tension exists between protecting the principle of allowing a testator to do as he wishes with his estate, and the Legislature’s legitimate goal of protecting potential beneficiaries from unreasonable testamentary dispositions.

[19]            In its discussion of the claims of adult independent children, the court said that such claims, grounded as they are on a “moral claim” basis, are more tenuous than claims arising from legal or trust obligations.  Nevertheless, the court found that absent circumstances that negate a gift to an adult independent child (i.e., valid reasons to disinherit) then, if the size of the estate permits, some provision should be made for the child (Tataryn ¶31).

[20]            As to balancing the priorities between claims arising from legal versus moral claims, the court said that legal claims should be given priority over moral, and as between moral claims:  ”...some may be stronger than others.  It falls to the court to weigh the strength of each claim and assign to each its proper priority” (Tataryn at ¶32).  When gifts are made to beneficiaries without moral claims, the court said this:

32        ...A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes.  Any moral duty should be assess in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children.

[21]            Finally, the court noted that there is no one correct answer to the question of how an estate should be divided among competing beneficiaries.  At para. 33:

33        I add this.  In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable.  In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances.  Provided that the testator has chosen an option within this range, the will should not be disturbed.  Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve.  In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him.  It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires.


[22]            The plaintiff made particular reference to Beames J.’s decision in Baulne v. Burtch (19 December 2002), Kelowna 56281 (B.C.S.C.).  In that case, the plaintiff was the sole surviving son of his parents.  He was an adult and was economically self-sufficient.  The plaintiff had become estranged from his parents.  The estrangement came about because the plaintiff and his mother were both unwilling to compromise with respect to certain aspects of their relationship.  The parents committed suicide together; their Wills left nothing to their son.  Their estate had a value of approximately $500,000.  Beames J. reviewed the law relating to Wills Variation Act proceedings and concluded that the parents had not made just and adequate provision for the plaintiff.  In the absence of any acknowledgement by the parents of their parental duty to provide for their son, and having concluded that some provision ought to have been made, Beames J. was obliged to pick an appropriate level of participation for the plaintiff in the proceeds of the estate.  That exercise necessitated the learned trial judge to analyse the testators’ relationship with the parties to whom they did leave their estate.  Those parties were six nieces and nephews.  The evidence satisfied Beames J. that those persons had meaningful relationships with the plaintiff’s parents.  In the end, Beames J. concluded that the Wills should be varied so that the plaintiff received 60 percent of the estate.  That award brought him about $300,000.

[23]            The outcome in Baulne was proper and correct given the particular set of facts in that case.  That case is, however, distinguishable from the present case, and it cannot be taken as a blueprint for the proper outcome here.  The most salient point of departure between the two cases is that, in Baulne, the court was not faced with having to decide whether the gift that was, in fact, given to the plaintiff lay within that “range of options” that the Supreme Court in Tataryn allowed could be appropriate.  Instead, Beames J. had to act as the testator herself; she had to pick a percentage of participation out of the range of percentages that were available to choose from.  Beames J. did not say, and was not obliged to say, whether the number she chose was at the top, middle or bottom of the range.

[24]            In the present case, Mrs. Crowley did pick a percentage of participation.  She decided that under the circumstances of her life, her relationship with the plaintiff, her devotion to her church, and her wish to provide for her granddaughter and niece and nephew, that her son should receive one-quarter of her estate and the balance should be divided between her other beneficiaries.

[25]            The question in this case is, therefore, whether under all of the circumstances Mrs. Crowley’s gift of one-quarter of her $1 million estate to her only child lay within the range of gifts that would be adequate, just and equitable within the meaning of the Wills Variation Act.

[26]            In my view, Mrs. Crowley had reason to write a Will that treated the plaintiff somewhat parsimoniously.  There can be no doubt that the plaintiff was a disappointment to his mother.  He rejected her faith and her church.  He got in trouble with the law.  He was sentenced to prison on at least two occasions and for crimes he chose not to describe in evidence in this trial.  The plaintiff was clearly willing to engage Mrs. Crowley in arguments, and he was capable of holding a grudge.  The plaintiff put the monetary and sentimental value of some tools above his feelings for his mother, and it was over this trivial tools incident that the plaintiff had no contact with Mrs. Crowley during the last 10 years of her life.  He left her alone while she felt the effects of advancing age and serious illness.  The fault was not, of course, entirely the plaintiff’s.  I have no doubt that Mrs. Crowley expressed her disappointment in her son unequivocally.  She could have adopted a more conciliatory attitude, but she did not.  Mrs. Crowley was, I am sure, partly responsible for the bad relationship she had with the plaintiff.

[27]            Turning again to Tataryn, I must ask myself what range of gifts to the plaintiff could satisfy society’s reasonable expectations of what a judicious person would do in Mrs. Crowley’s place?  Would a one-quarter share of $1 million be enough to meet those expectations?  Put another way, would a $250,000 to a 70-year-old man, who owns clear title to three properties and has modest savings, a modest lifestyle that is in keeping with the modest lifestyle his parents followed, and an income sufficient to met his needs, and in whom the testator was, with good reason, disappointed, offend the sensibilities of an impartial observer?  The answer to that question must, in my opinion, be no.  That gift is, I think, at the low end of the acceptable range, but it is within the range and it should not be disturbed.


[28]            The plaintiff’s claim must be dismissed.


[29]            In the event of success, the defendants asked for their costs against the plaintiff but that they not be paid out of the estate.

[30]            In the present case, there was no issue of Mrs. Crowley’s testamentary capacity or of construction of her Will.  This lawsuit was driven entirely by the plaintiff’s desire to get more money than his mother chose to give to him.  He was unsuccessful.  There is no reason to depart from the usual order that costs follow the event, and there is equally no reason that the estate be obliged to bear those costs.

[31]            That said, the majority of the defendants presented a single defence and were represented by one counsel.  Those defendants are entitled to a single bill of costs against the plaintiff.  Ms. Walkhouse did not take a position and she did not appear at the trial.  She is not entitled to costs.  The executor was obliged to appear in the proceeding on behalf of the estate; the executor is entitled to his costs on a separate bill against the plaintiff.

[32]            All costs will be on Scale B.

“P.J. Rogers, J.”
The Honourable Mr. Justice Rogers