Tomlyn v. Kennedy, 2008 BCSC 331

In many cases, more than one person may have a claim to vary a deceased person’s will. In that situation, it is important that all claims be heard together so that the Court can assess all claims at once.

The first person to file a lawsuit seeking to vary a deceased person’s will is required to name as defendants all beneficiaries under the will and all parties who could potentially make bring their own wills variation claim. This puts other potential claimants on notice and provides them with the opportunity to participate in the lawsuit.

Under the Supreme Court Civil Rules, a defendant named in a proceeding to vary a will may include their own claim to vary the will as part of that proceeding as opposed to starting their own lawsuit. The Court, then, has discretion to make an award in favour of such a defendant in addition to the plaintiff.  This is what happened in Tomlyn v. Kennedy, 2008 BCSC 331.

In Tomlyn, Michael Tomlyn sought to vary the will of his mother, Pauline Herchenson. His brother, Francis Tomlyn, was duly named as a defendant together with the executor and other beneficiaries named in the will.

Under her will, Ms. Herchenson left cash gifts totaling approximately $270,000 to various relatives, friends, and a charity. She also left $15,000 for the maintenance of her dog and $50,000 for the benefit of her brother, with the direction that any unused amounts as of the recipients’ death applied to the residue of her estate.

The residue of the estate, which totaled $230,000, was to be disbursed in equal shares among her three sons from whom she was estranged. Under the terms of the will, this would have resulted in a gift of $76,000 each to her two surviving sons, and $76,000 to be divided amongst George’s children.

The estrangement was a result of the children being apprehended when they were under the age of 3. The brothers never had contact with their mother again. George Tomlyn, Ms. Herchenson’s youngest son, was eventually adopted. He died prior to Ms. Herchenson leaving four surviving children. Neither Michael Tomlyn nor Francis Tomlyn were ever adopted. Both had difficult upbringings and, at the time of trial, modest means. Ms. Herchenson did not leave a surviving spouse nor did she have any other children.

Following a trial, the Court acknowledged that, as the children of testator, both Michael and Francis had standing to apply to vary the will. Despite Michael being the party that started the lawsuit, the Court considered the claim of Francis as well.

The Court recognized that George would not have had standing to apply to vary the will as he ceased being a child of Ms. Herchenson the moment he was legally adopted. However, this did not negate the gift to George in the will, which passed to his children.

In the end, the Court varied Ms. Herchenson’s will to provide $175,000 to Michael and $125,000 to Francis. In varying the will, the Court sought to balance the principle of testamentary autonomy against the moral obligations Ms. Herchenson owed to her sons.

The decision in Tomlyn v. Kennedy shows the Court’s expansive power to make orders relating to the distribution of an estate including to the benefit of a party who did not initiate the claim. Despite this power, it is important that a person who wants to benefit from the variation of a will does so in the appropriate manner and participate in the litigation.

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