Gollan v. Burnett

2014 BCSC 2424 Gollan v. Burnett

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Gollan v. Burnett, 2014 BCSC 2424 Date: 20141222 Docket: S088568 Registry: Vancouver Between: Barbara Ann Gollan Plaintiff And Robert Reid Burnett, Executor of the Estate of Olga Tobin, Deceased; Robert Reid Burnett, In his personal capacity; Garrett Reid Burnett; Andrea Lynn Burnett; Melissa Gollan and Krystal Gollan Defendants Before: The Honourable Mr. Justice Steeves Reasons for Judgment Counsel for the Plaintiff: D. Unterman Counsel for the Defendants: T. Lewis Place and Date of Trial/Hearing: Vancouver, B.C. October 20-24, 2014 Place and Date of Judgment: Vancouver, B.C. December 22, 2014 Table of Contents A. Introduction. 3 B. Background. 3 C. Analysis. 5 (a) Resulting trust 5 (b) Is the presumption of resulting trust rebutted?. 6 (c) Undue influence. 13 (d) Has the presumption of undue influence been rebutted?. 15 (c) Misuse of estate funds. 17 (d) Wills Variation Act 19 (e) Jewellery, hidden cash and other issues. 25 D. Summary. 29 A. Introduction [1] A daughter and son have never got along and now they are fighting over the estate of their mother. [2] The mother made a will in 1994 that left cash legacies to each of her four grandchildren, a cash legacy to her daughter (or one-third of the balance of the estate, whichever is less) and the residue to the son (also the executor). [3] The mother was the subject of a

certificate of incapacity in 1995. The Public Guardian and Trustee managed her affairs until the son was appointed as a committee in 1996. The mother died in 2008 and the son benefitted disproportionately compared to the daughter from the will. [4] The daughter seeks a number of orders on the basis of resulting trust, undue influence, misuse of estate funds and the Wills Variation Act, R.S.B.C. 1996, c.

490. There are also issues relating to the mother's cash, her jewellery, a condominium in Birch Bay, Washington State, and whether a 1979 loan from the mother to the daughter was interest free or not. [5] According to the executor, in July 2012 there was just enough in the estate to pay out the cash legacies to the four grandchildren. Significant amounts have been paid out in legal and other fees as a result of the disagreements between the parties. B. Background [6] Olga Tobin died on March 2, 2008. She was the mother of the plaintiff Barbara Ann Gollan ("Barbara") and the defendant Robert Reid Burnett ("Robert"). [7] The defendants Garrett Reid and Andrea Burnett are the children of Robert. I will refer to them as the "defendant" or "defendants." The defendants Krystal Gollan and Melissa Gollan are the daughters of Barbara. They have not filed any pleadings in this action. They attended the trial as observers. [8] Ms. Tobin executed a will in July 1994. The will provides for cash legacies to each of her grandchildren of $15,000, another cash legacy to Barbara of $80,000 (or one-third of the balance of the estate, whichever is less) and the residue is to be paid to Robert. At trial Barbara advised, through her counsel, that there is no issue as to the validity of the 1994 will or any issue of undue influence about it. However, according to Barbara, those issues do arise with

the transfer by Ms. Tobin of her bank accounts into joint accounts with Robert in July 1994. [9] There is a leasehold condominium in Birch Bay, Washington State. Barbara is currently the leasee and Ms. Tobin is the leasor. There is a dispute about the status of that property and whether any benefit Barbara receives from it is part of the estate of Ms. Tobin. Robert has his own condominium in Birch Bay and there is no issue about that property. There was a loan from Ms. Tobin to Barbara of either $61,000 or $50,000 in 1979. It was paid back without interest but the defendants say that interest is owing on it and it should go to the estate of Ms. Tobin. [10] Ms. Tobin suffered a stroke in October 1994 and a certificate of incapacity was issued in January 1995. Prior to the stroke there were episodes of depression, including hospitalization. The Public Guardian and Trustee had conduct of the affairs of Ms. Tobin from January 1995 until Robert became the committee in March 1996. [11] The evidence includes verbal abuse between Barbara and Robert as well as between Ms. Tobin and Barbara and her children. There were three estrangements between Barbara and her mother. By all accounts Ms. Tobin could be quite difficult to help even before her illness and very demanding of her children. [12] Ms. Tobin had jewellery valued at about $45,000. Robert says she gifted this to him and his wife,

Vicci Burnett ("Vicci"); the plaintiff disputes this and says the jewellery is part of the estate of Ms. Tobin. In addition, according to the plaintiff, Barbara, Ms. Tobin hid large rolls of $100 bills in various places in her home and this was stolen by Robert. Robert denies there was any hidden money and that he stole anything. [13] At the time of Robert's testimony he was suffering from cancer and the effects of chemotherapy. His wife, Vicci, testified that the cancer is in remission but Robert suffers from "chemo brain" such that he has difficulty understanding questions, he loses his place in conversations and he is sometimes confused. For example, he describes his knee as painful when he means to say his back. Vicci has been assisting Robert with his health difficulties including managing the estate of Ms. Tobin. Barbara is suspicious and even skeptical as to Robert's health issues. As will be seen, Robert did testify and he was cross-examined. [14] Each party seeks special costs against the other. C. Analysis [15] During the trial of this matter counsel for the plaintiff advised that she was no longer pursuing her claim of undue influence with respect to the 1994 will of Ms. Tobin. Nor is she pursuing her claim that that will is invalid. It follows that sub-sections 25(a) and (b) of the Notice of Civil Claim are abandoned. [16] There remain issues of resulting trust with

respect to the transfer of bank accounts from Ms. Tobin into joint accounts with Robert, the claim of undue influence with respect to those accounts, an allegation of misuse of estate funds, an application under the Wills Variation Act and disputes about the jewellery, the cash, the Birch Bay condominium and whether the 1979 loan from Ms. Tobin to Barbara was interest free or not. [17] I will consider each of these issues in turn. Counsel are agreed that the applicable legislation here is the Wills Variation Act (not the Wills, Estates and Succession Act, S.B.C. 2009, c. 13). (a) Resulting trust [18] In 1994 Ms. Tobin transferred her bank accounts into joint accounts with Robert. There appears to be agreement that the accounts currently total about $172,000. The plaintiff says that this transfer should be set aside and the funds should form part of the estate of Ms. Tobin, to be distributed in accordance with her will. If the transfer is not set aside then Robert would become the sole owner of the accounts by means of survivorship. [19] It is not seriously disputed that the transfer of the accounts was a gratuitous gift from Ms. Tobin to Robert and the Supreme Court of Canada has directed a two stage inquiry in these circumstances. First, I must determine the proper presumption to apply and, second, I must weigh all of the evidence to determine whether the presumption has been

rebutted (Pecore v. Pecore, 2007 SCC 17 at paras. 44, 55). The gratuitous transfer is not an issue, the question is whether Ms. Tobin intended and knew she was making a gift. [20] With regards to the first issue, I find that the applicable presumption is one of resulting trust. A resulting trust "arises when title to property is in one party's name, but that party, because he or she is a fiduciary or gave no value for the property is under an obligation to return it to the original title owner" (Pecore at para. 20), assuming the presumption is not displaced by contrary evidence. The presumption of advancement is no longer applicable when transfers occur between parents and their children (Aujla v. Kaila, 2010 BCSC 1739 at para. 34). [21] The presumption of resulting trust is a rebuttable presumption of law. When a gratuitous transfer is challenged, the presumption allocates the legal burden of proof and the onus is placed on the transferee (the defendants in this case) to demonstrate that a gift was intended. This is because equity presumes bargains, not gifts (Pecore at para. 24). (b) Is the presumption of resulting trust rebutted? [22] The second part of the inquiry is to weigh all of the evidence to determine the actual intention of Ms. Tobin; " the presumption [of resulting trust] will only determine the result where there is insufficient evidence to rebut it on a balance

of probabilities" (Pecore at para. 44). [23] Robert testified about the origin of the joint accounts and Vicci provided further evidence about them. [24] In the summer of 1994 Ms. Tobin was having supper with the Burnetts and they talked about her accounts, among other things. Robert testified that Ms. Tobin was getting older, she was slowing down a bit and he and Vicci were concerned because they could not tell how she would be one month to the next. [25] Robert and Vicci discussed Ms. Tobin's finances with her, including the accounts and the value of her home and they talked about making joint accounts in the names of Ms. Tobin and Robert. Ultimately Ms. Tobin was able to sell her house and buy a condominium and the difference went into joint accounts with her and Robert. He testified that she was about 70 years old at this time and she trusted his "firm hand" in dealing with any financial issues that might come up. He explained to her how the joint accounts would work including the operation of survivorship. He pointed out their different ages and that "the law of averages was that [she] will predecease me", as he put it in his evidence. He also explained to her that the right of survivorship means that the accounts would pass to him on her death. [26] According to the evidence of Robert, Ms. Tobin agreed to the transfer of the accounts into the joint ownership of Ms. Tobin

and Robert. Barbara disputes this and says that Ms. Tobin was not exercising her own free will when she completed the transfer. [27] According to the plaintiff, the fact that Robert took Ms. Tobin to the bank is evidence of a breach of trust. However, by all accounts Ms. Tobin required someone to assist her in being mobile and a family member is a logical person to assist. There is no evidence that Ms. Tobin objected to making the accounts joint or that she was somehow coerced into doing so. Stated as broadly as it is by the plaintiff, I do not agree that the fact that Robert took Ms. Tobin to the bank means there was a breach of trust. [28] The plaintiff also relies on information obtained from the file of the Public Guardian and Trustee. As above, that office became the committee for Ms. Tobin on January 4, 1995. This followed a stroke by Ms. Tobin in October 1994 and the appointment was pursuant to a certificate of incapacity (also on January 4, 1995). [29] Three documents from the file of the Public Guardian and Trustee were entered in evidence by the plaintiff. As will be seen, there are hearsay issues in some of this material. I admitted that information on the basis of necessity but reserved on the issue of reliability. These and other conversations recorded by the Public Guardian and Trustee are discussed here. [30] The first document is a "Phone/Interview Log", dated

January 25, 1995, which describes a telephone conversation between Tim Neuman, of the Public Guardian and Trustee, with Yvonne Edwards, solicitor for Robert: Edwards called requesting the Public Trustee to obtain a Committeeship for Person in order to effect a placement decision for this client. Edwards states that family members do not agree on placement. Edwards states that R. Burnett [Robert] disclosed an additional joint asset of $11,000.00 held at the Royal Bank. Edwards states that Burnett [Robert] has no claims or interest in the assets he holds jointly with Olga Tobin. Burnett to advise banks of his position on joint assets. [Reproduced as written] [31] The last paragraph is specifically relied on by the plaintiff. It contains, of course, double hearsay although the original declarant, Robert, is a party in this litigation and was a witness. Ms. Edwards was apparently not available to be a witness and was not able to be contacted. [32] Neither party addressed this paragraph in any detail in their evidence. The plaintiff submits it is evidence that Ms. Tobin owns the money in the accounts, despite the joint nature of the accounts. The paragraph is capable of that meaning but it is more directly a statement that Robert did not make any claim on the joint assets. Overall, with the hearsay issue and without any context, I am unable to make much out of it. I conclude it is

not reliable evidence that supports the plaintiff's claim. [33] A second document from the Public Guardian and Trustee is a memo to file, July 7, 1995, by Mr. Tim Neuman ("TNE") who met with Ms. Tobin at her residence on July 4, 1995 with a continuing care person: TNE establish in this meeting that: 1. CLT [client] will confuse the names of her children. She will refer to her daughter Barbara as `Bobby' and her son Bobby as `Barbara' periodically. This was pointed out to me by [the continuing care person]. To ensure her children were correctly identified, we asked CLT to refer to pictures of her children in the course of the meeting to ensure that they were correctly identified. Using this method, TNE and [continuing care person] established that the CLT wished the public trustee to proceed with their request to Robert Burnett that he return to the client's ownership the sum of approximately $132,000 that he has been holding for her in a bank account under his name. (Robert Burnett made this declaration in his correspondence with the Public Trustee.) 2. CLT stated that she has given her car (1987 Dodge Aries) to her son Robert Burnett. CLT insisted that her wish to give this car to her son be respected. CLT stated: "that's that." 3. CLT was given a summary of her assets as investigated by the Public Trustee and advised that she can now operate her savings account at the Royal

Bank, 5000 Kingsway Plaza. [Reproduced as written] [34] The reference to the $132,000 is to an amount separate from the joint bank accounts and one that Robert posted a committeeship bond for (and that still exists). He also posted a bond of $300,000 for assets he held solely in the name of Ms. Tobin. [35] The third document from the Public Guardian and Trustee is a memo to file, from Tim Neuman, June 13, 1995, "RE: Olga Tobin: interview with client on 13 June 1995": TNE reiterated Public Trustee's role in helping client with the management and protection of her assets and income. Client was very concerned with her ownership and control of assets and income. Client reiterated a number of times that she wanted the financial decision-making to be hers alone and not shared with family members. Client took an interest in the Public Trustee's role in helping her. She appeared to recognize [Public Guardian and Trustee]'s role in helping her and did not appear to question it. Client brought up the matter of her assets now being in joint ownership with her son, Robert `Bobby' Burnett. Client appeared upset about that. TNE advised her that her bank assets at Royal Bank, Vancity, and Canada Trust were now in her name only. TNE advised her that he had talked to Bobby Burnett (as well as his spouse Vicci Burnett and lawyer, Yvonne Edwards) about removing his name and he agreed to do that.

(As per communication with these banking institutions on 5 June 1995, it was established that these assets are now under the sole ownership of Olga Tobin.) Client was pleased to hear this and reiterated that it was her money. TNE explained to client that Bobby Burnett had informed the Public Trustee that he is holding $132,000 of her money in a bank account under his own name. TNE asked client whether she wanted that money back. Client stated: "Yes, that is my money." Client went on to say that Bobby Burnett was suppose[d] to "hold onto this money for a little while and he hasn't given it back." Client appeared quite emotionally distressed when she made this remark. Client again reiterated that her money was her money. TNE asked whether these fines were placed in Bobby Burnett's care so that he could inherit them by right of survivorship. Client stated that this was not the case. Client indicated that she had no estate plan. Client stated adamently that these funds were not placed in his care so that he could inherit them. The way the client described the funds held by Bobby Burnett gave the impression that the funds were something in the way of a loan to him. Client appeared to show much distrust and anxiety toward Bobby Burnett. In the course of this discussion, client referred to other funds she believes Burnett has access to. Client pointed to places she hid money in her

condominium; in the sideboard (cabinet), behind the chesterfield, in a shoebox. Client stated that this money has been removed and she alleged that Bobby Burnett had taken it. Client also made reference to a time she told Bobby Burnet[t] that she had money in her purse. She alleged that Bobby Burnett had taken it. Client stated that she hasn't had anything like an estate plan; that her money is her money; that she "can give it" to who she pleases. Client stated that when she passes on "I don't know what will happen." Client then lapse into a discussion of Bobby Burnett. Client suggested that Bobby Burnett's intention is to have her money and to exercise control on her current affairs to effect that end. Client requested to have her bank assets, car, and rings returned or her sole ownership and possession. [Reproduced as written] [36] There are obviously questions raised in this memo about Ms. Tobin's concern about her money and Robert. The issue of the cash referred to as hidden by Ms. Tobin is discussed below. However, it must be considered in the context of other events occurring at the same time. [37] First, as will be seen below in more detail, this family has an unfortunate and recurring history of angry and even abusive relationships between its members. For example, at one point Ms. Tobin was living with Barbara and her children. Barbara testified that Ms. Tobin was

verbally abusive to her children to the point of having to move her out of the house against her will. As well, Robert and Vicci testified that they had great difficulty satisfying Ms. Tobin as to the place she was to live. Ms. Tobin demanded to be moved and then did not agree to any new locations. In addition, at different times Ms. Tobin was estranged from Robert and Barbara. To the extent that the above comments from Ms. Tobin are angry and resentful against Robert, they need to be considered in this context. [38] A further complication is that Ms. Tobin had been the subject of a certificate of incapacity in January 1995, about six months before these statements. An obvious example of this is the July 7, 1995 statement above where she was recorded as having difficulty identifying who her children were, referring to Robert as Barbara and vice versa. [39] A further contextual issue is that Ms. Tobin executed a nomination of committee on July 10, 1995, three days after the last note from the file of the Public Guardian and Trustee. She nominated Robert as the committee of her person and estate and she "determined" that Robert was "both trustworthy and responsible." Clearly this is contrary to the statements from Ms. Tobin recorded in the notes of the Public Guardian and Trustee. It is true that the same lack of capacity referred to above in the context of the statements

recorded by the Public Guardian and Trustee must be applied to this nomination document. However, I note that the plaintiff has not challenged this nomination in her pleadings. [40] In any event, I conclude that Ms. Tobin's lucidity and/or incapacity exhibited itself in contradictory ways in June and July 1995. [41] As a final comment on the information in the Public Guardian and Trustee's documents I note the appointment of Robert as the committeeship of Ms. Tobin. Following an application by Robert, an Order of this Court, dated July 4, 1996, confirmed that Ms. Tobin was incapable of managing her estate (after considering affidavits of two doctors) and rescinded the appointment of the Public Guardian and Trustee as committee. Robert was appointed as the committee of Ms. Tobin, pursuant to her nomination of July 10, 1995 (discussed above). Barbara was represented by counsel; the Public Guardian and Trustee was not represented although duly served. [42] In my view, Ms. Tobin's concerns about her money and her bank accounts, as described in the June and July 1995 notes on the Public Guardian and Trustee file, have to be considered in the context of the health of Ms. Tobin and other events at the time. These include the Court Order one month later, Ms. Tobin's nomination of Robert as her committee within days of the notes on file and the Court confirming Robert's appointment. Ms.

Tobin's concerns were obviously known to the Public Guardian and Trustee and, if the Public Guardian and Trustee believed that there was merit to those concerns about Robert, they had the opportunity to express them to the Court. [43] In fact, in a letter dated November 17, 1995 to Robert's solicitor, a solicitor for the Public Guardian and Trustee reviewed the entire situation and said, "Based on the material I have reviewed, the Public Trustee has no objection to the appointment of Robert Reid Burnett as a Committee." Attached to the letter was a report by Robert dated March 14, 1995 which, among other things, said that Ms. Tobin learned from her notary public that there was a "possibility" that Barbara would contest the will. (d) She then decided that she wished certainty about the disposition of some of her assets and she had me accompany her to the Royal Bank of Canada - where she put all 6 of her accounts into the joint names of herself and me (with rights of survivorship). (e) The intent expressed at that time was that 50% of the Capital in the accounts was to be mine upon maturity and that I was to hold the other 50% interest for her use during her lifetime. Thereby, ensuring that the intention expressed in her Will was not short circuited by any claim brought after her death by Barbara. [44] This report was specifically referred to in the Public Guardian and Trustee's

letter of November 17, 1995. There was also a reference in the March 14, 1995 letter to Robert holding $132,000 of Ms. Tobin's funds. The Public Guardian and Trustee said that they should be recognized as the funds of Ms. Tobin and " the committee must hold them either in Mrs. Tobin's name or Mrs. Tobin's and the Petitioner's [Robert's] joint names." In the end the $132,000 was the subject of a bond posted by Robert but the Public Guardian and Trustee did not have any difficulty with proposing Robert as a joint account holder with Ms. Tobin. [45] In summary, I conclude that on a balance of probabilities there is sufficient evidence to rebut the presumption of resulting trust. This includes the lack of any objection from the Public Guardian and Trustee to the appointment of Robert as committee knowing that he was a joint owner of the bank accounts. On this basis I find comments recorded from Ms. Tobin in the second and third documents from the Public Guardian and Trustee as being unreliable, as the Public Guardian and Trustee apparently did. Further, I conclude that the evidence of Robert and Vicci as to the transfer of the bank accounts into joint accounts with Ms. Tobin and Robert is to be given some weight. (c) Undue influence [46] The plaintiff argues that the transfer of Ms. Tobin's bank accounts into joint accounts with Robert was also subject to a presumption of undue

influence (as well as resulting trust) and that presumption has not been rebutted. The defendants say, if there was any presumption of undue influence, it has been rebutted. There is some overlap between this issue and the issue of resulting trust above, including the applicable evidence. [47] In a previous case Mr. Justice Groves usefully summarized the general principles that apply to undue influence (Modonese v. Delac Estate, 2011 BCSC 82, aff'd, 2011 BCCA 501): [96] In Longmuir v. Holland, 2000 BCCA 538 at para. 71, 192 D.L.R. (4th) 62, Southin J.A. defined undue influence as "influence which overbears the will of the person influenced so that in truth what she does is not...her own act". [97] In the leading case of Allcard v. Skinner (1887), 36 Ch. D. 145 at 171, 56 L.J. Ch. 1052 (C.A.), Cotton L.J. discussed the two classes of transactions which may be set aside on grounds of undue influence: "First, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for the purpose; second, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor." [98] The plaintiff claims that this case falls within the second class of transactions. Counsel for the plaintiff argues that "Geffen v. Goodman Estate, [1991] 2 S.C.R.

353, determined that a gratuitous transfer from a parent to an adult child creates the presumption of undue influence by the adult child." Counsel submits that as the presumption applies in this case, the onus shifts to the defendant to establish that Regina entered into the transaction as a result of her own "full, free and informed thought". [99] The second class of undue influence does not depend on proof of reprehensible conduct. It affects those who may have acted in the sincere belief of their honesty. Under this class, equity will intervene as a matter of public policy to prevent the influence existing from certain relationships from being abused: Ogilvie v. Ogilvie Estate (1998), 49 B.C.L.R. (3d) 277 at para. 14, 106 B.C.A.C. 55 (C.A.), citing Allcard. [100] In Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53 at paras. 42-45, Wilson J. discussed the presumption of undue influence in the following passages: 42 What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as

solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization. 43 Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. ... 44 in situations where consideration is not an issue, e.g., gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. In these situations the concern of the court is that such acts of beneficence not be tainted. It is enough, therefore, to establish the presence of a dominant relationship. 45 Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own "full, free and informed thought". Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on.

Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised. [101] Accordingly, once a relationship with the potential for domination has been established, the next phase of the inquiry is to examine the nature of the transaction. Where a gratuitous transfer is concerned, the onus moves to the defendant to rebut the presumption on the balance of probabilities: Stone v. Campbell, 2008 BCSC 1518 at para. 44, 44 E.T.R. (3d) 146. [48] Other cases have noted that the concern is with potential undue influence rather than actual influence (Dempsey v. Dempsey, 2010 NSSC 96 at para. 44) and a finding of undue influence does not require proof of reprehensible conduct (Modonese at para. 99). Further, a gratuitous transfer from a parent to a child does not automatically result in a presumption of undue influence (Stewart v. McLean, 2010 BCSC 64; Modonese at para. 102) but it will be found where the parent was vulnerable through age, illness, cognitive decline or heavy reliance on the adult child (Modonese at paras. 103-110). [49] As discussed above under resulting trust, the transfer of the accounts into joint accounts was a gratuitous transfer from Ms. Tobin to Robert and Ms. Tobin was beginning her decline into incapacity. Therefore, I will proceed on the basis of a

presumption of undue influence. (d) Has the presumption of undue influence been rebutted? [50] Mr. Justice Punnet previously summarized the cases on the legal approach to this question point in Stewart as follows: [97] To rebut the presumption of undue influence, the defendant must show that the donor gave the gift as a result of her own "full, free and informed thought": Geffen at 379. A defendant could establish this by showing: (a) no actual influence was used in the particular transaction or the lack of opportunity to influence the donor (Geffen at 379; Longmuir at para. 121 [Longmuir v. Holland, 2000 BCCA 538]); (b) the donor had independent advice or the opportunity to obtain independent advice (Geffen at 379; Longmuir at para. 121); (c) the donor had the ability to resist any such influence (Calbick v. Warne, 2009 BCSC 1222 at para. 64); (d) the donor knew and appreciated what she was doing (Vout v. Hay, [1995] 2 S.C.R. 876 at para. 29, 125 D.L.R. (4th) 431); or (e) undue delay in prosecuting the claim, acquiescence or confirmation by the deceased (Longmuir at para. 76). Another relevant factor may be the magnitude of the benefit or disadvantage (Geffen at 379; Longmuir at para. 121). [51] With respect to actual influence, the plaintiff says that this is established by the fact that Robert took Ms. Tobin to the bank to execute the transfer of the accounts. However, as

discussed above in the discussion on resulting trust, I do not accept this bald assertion as establishing actual influence. Absent some evidence that Ms. Tobin was coerced to go to the bank or was otherwise unwilling to go there I do not agree there was actual influence. [52] On the issue of whether Ms. Tobin had independent advice there is no evidence that she received advice from a solicitor with respect to the transfer of the bank accounts. However, she made the transfer the same day as executing a power of attorney before a notary. The evidence suggests these two matters, the power of attorney and the transfer of the bank accounts, were done together as part of a plan by Ms. Tobin to put her affairs in order. [53] To perhaps understate her ability to look after herself and resist any undue influence, it is clear that Ms. Tobin could be aggressive in her dealings with family members. For example, despite their best efforts and the merits of the idea, Robert and Vicci could not get her to move into a senior's facility. It is also significant that, contrary to the plaintiff's assertion, the transfer of the accounts was done in the spring or summer of 1994, before the stroke in October 1994 and her certified incapacity in January 1995. When considered with the decision to transfer the accounts and execute the power of attorney at the same time there appears to have been a plan

in place and I conclude that Ms. Tobin knew what she was doing. [54] There is no issue of equitable issues such as delay or acquiescence. [55] Overall, I conclude that Ms. Tobin knew what she was doing when she transferred the bank accounts into joint accounts with Robert, there was no actual influence by Robert except to explain the issue of survivorship and she had the ability to resist any influence. For these reasons I find the presumption of undue influence has been rebutted. (c) Misuse of estate funds [56] It is well settled that an executor must remain impartial between opposing beneficiaries. Further, he should not pick sides between beneficiaries and use estate funds to finance litigation on their behalf under the Wills Variation Act. "It is a matter of indifference to the executor as to how the estate should be divided" and the executor need only comply with the terms of the will or any variation of it made by a court (Wang v. Halliday, 2014 BCSC 1574 at para. 22; citing Quirico v. Pepper Estate (1999), 91 ACWS (3d) 690 at para. 15 (BCSC)). [57] In this case the plaintiff's claim of misuse of estate funds arises primarily from the allegation that Robert, as executor, has not presented the estate accounts for passing. Further, he has not provided adequate disclosure of information about the estate to the beneficiaries. The plaintiff accepts that the 2007 accounts

(dated February 13, 2008) are accurate. Robert has declined to submit any further accounts because none of the beneficiaries will agree to them. He also attempted to have himself discharged as a committee and that there be no further accounting but his application was denied in this Court on January 26, 2011. Special costs were awarded to both Robert and Barbara, payable from the estate of Ms. Tobin. [58] Robert, as the executor, has provided reports to the beneficiaries dated March 13, 2011, July 25, 2012 and April 9, 2013. In the first report, he stated there was no longer any residue and in both the reports from 2011 and 2012 he stated that there was only enough money in the estate to cover the cash legacies of the four grandchildren. In the report of March 13, 2011 he stated that "one more legal bill and there will be no residue left and I will have to go into the 4 specific bequests [of the grandchildren]." In the April 9, 2013 report Robert stated that " every move from here going forward will be coming out of your inheritances." I presume these comments do not include the funds in the joint accounts challenged by the plaintiff. [59] The plaintiff also alleges that Robert has not provided all the necessary information to permit an examination of the accounts. Robert says he has complied with all disclosure orders and the plaintiff was given all of the accounts from the

Public Guardian and Trustee some time ago. However, the plaintiff interprets the disclosure orders differently. The result is that there is now a disagreement about what the orders mean with the real prospect of further disagreements. [60] With respect to the passing of accounts, Robert says that he cannot do it because the plaintiff challenges his appointment as executor of Ms. Tobin's estate. I understand this to mean that any further work Robert might do on the estate would be invalid if the plaintiff is successful in her challenge. There is some merit to that position but the plaintiff has also contributed to the current stand-off. [61] Most recently this arose during argument when plaintiff's counsel advised that the plaintiff was not interested in a passing of the accounts before the Registrar. Instead the objective of the plaintiff is to have a detailed cross-examination of the accounts in court so that more time can be taken than permitted by the Registrar. While this court has jurisdiction over the passing of accounts, I do not agree that this is a case to do so. The desire to spend more time examining the accounts than is permitted by the Registrar is not a good reason to supplant those proceedings. As well, while this estate is obviously important to the parties, it is not a particularly complicated one or one of significant value. [62] It is clear that the

plaintiff's attempts to avoid proceedings before the Registrar are a significant obstacle to the passing of the accounts of the estate. There is also evidence that she has refused to cooperate in proposals to pass the accounts. [63] In short, the administration of Ms. Tobin's estate is stalled with the beneficiaries refusing to approve any reports and the executor, Robert, refusing to do any more work on the accounts. Further, as can be seen, the estate is being steadily used up to pay for the conflicts between Barbara and Robert. [64] In these very unfortunate circumstances I can only direct that the passing of the accounts in this estate be conducted by the Registrar at the earliest opportunity. (d) Wills Variation Act [65] The will of Ms. Tobin (filed June 13, 2008) provided for cash legacies of $15,000 to each of her grandchildren, a cash legacy of $80,000 to Barbara (or one third of the balance of the estate, whichever is less) and the residue is to be paid to Robert. He is to also receive Ms. Tobin's 1987 vehicle. And he was appointed as the executor of the estate. [66] Barbara claims under the Wills Variation Act that Ms. Tobin died without making adequate provision for Barbara's maintenance and support and that "Barbara requires a greater share of the capital of the estate." Again, she does not challenge the validity of the will or allege that its terms were the subject

of undue influence. [67] In a previous case, Mr. Justice N.H. Smith has usefully described the law on this issue (Petrie v. Burnett, 2008 BCSC 1503): [75] The Wills Variation Act permits the court to allocate part of an estate to a spouse or child of a testator who has not been adequately provided for in a will. The relevant section reads: 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 any 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. [76] In Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, 116 D.L.R. (4th) 193 the Supreme Court of Canada said the purpose of that section is to enforce the testator's legal and moral obligations, but that a testator's freedom to dispose of his or her property should be interfered with only in so far as the statute requires. In regard to claims by adult children who were not dependent on the testator, the Court said at 822-823: 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. [77] In Kelly v. Baker (1996), 15 E.T.R. (2d) 219, 82 B.C.A.C. 150 (C.A.) the Court of Appeal said this moral obligation can be negated by "valid and rational" reasons: 58. The law does not require that the reason expressed by the testator in her will, or elsewhere, for disinheriting the appellant be justifiable. It is sufficient if there were valid and rational reasons at the time of her death - valid in the sense of being based on fact; rational in the sense that there is a logical connection between the reasons and the act of disinheritance. [68] Applying the above to the evidence, the question is, bearing in mind the legal and moral obligations of Ms. Tobin, whether there is reason to interfere with her freedom to dispose of her property in the way she saw fit? I should interfere with that freedom only to the extent the Wills Variation Act requires. Further, were there valid and rational reasons at the time of her death for Ms. Tobin to have made the will she made? [69] The history of the relationship between Barbara and her mother is relevant here. This includes three estrangements. [70] The first was in 1990. Barbara testified that it arose from a dispute over the Birch Bay condominium when she was with her former husband. The differences

seemed to be resolved but a year later Ms. Tobin was "severely depressed" and "banging at my door", as Barbara described it in her evidence. Barbara told Ms. Tobin that she could not stay with her. Barbara called Robert who took her and she ended up staying at her sister's. According to Barbara, Ms. Tobin was "very upset" with her and there was an estrangement that lasted about six weeks. [71] The second estrangement was in 1992 when Barbara and her husband were about to go on a three week holiday in the Okanagan. Ms. Tobin was visiting in California at the time. She telephoned Barbara that she was returning to Vancouver and "demanded" (as described by Barbara in her evidence) that Barbara return to Vancouver at once. Barbara talked to her husband and then suggested to Ms. Tobin that she come to the Okanagan. Ms. Tobin "screamed no" and "hung up." When Barbara return to Vancouver Ms. Tobin was "cold" and Barbara could see it was "going to be an estrangement not just an argument." The estrangement that followed this incident lasted four to six weeks. [72] During or following this estrangement Barbara wrote what was described in the evidence as her "feelings letter" dated "May 1993". Barbara testified that she wrote the letter because Ms. Tobin had not been "very nice to me" when she was on vacation and she was reminded about what happened during the first estrangement. Barbara

had "had enough" and she could not talk to Ms. Tobin "about anything." [73] This letter is in evidence and it is lengthy. I quote or summarize parts of it (reproduced as written and emphasis in original): (a) The letter begins with: I feel that it is time that I got to air my feelings and thoughts with you. You always claim you don't feel well enough to hear anything but what you want to talk about. I think that it is time that you heard someone else's version of the things that happened I've made a vow to myself that I will not let you go to your grave without you knowing how I feel. If you choose not to read this letter than that is your loss because as usual no one else's opinion or feelings matter to you. But you know what, you cannot always be the right one. NO ONE CAN. (b) Barbara describes sexual abuse by Robert when she was young. (c) The body of the letter includes the following: I don't remember too much of my growing up years and maybe that is just as well because what I do remember, it was not a very pleasant experience. I do know I was very much alone and very lonely." There were signs of neglect and abuse (that would be detected today in the school system) you weren't home much to offer support and love, you are off playing Bingo most evenings. You should take equal blame for what happened to us because you did nothing to try to make the situation better. I really

don't feel that you were ever there for me, throughout my childhood. I don't ever remember any special times like Birthday Parties, Christmas, you going to any school functions. I know that it was because you were always sick and of course it was my fault which, I never lived a day without hearing those words. It was a pretty heavy thing that you attached on me as a young child. You never let up on those words and would still mention them today if given the opportunity. I never asked to be born and don't feel it was my fault you had a horrid labour. I feel like you resented me most times. I could never really count on you for support as you were and are a very negative self centered person. When you went to California after Gran died and you were returning home to be alone and I stayed with my family on vacation as well your son didn't disrupt his holidays. Do you remember how you treated me like SHIT. Tell me did you treat him like shit? (d) There are references to the sexual activities of Robert outside his marriage. (e) The body of the letter continues: You were really hurt that I didn't let you come back to live with us the second time. I was very disappointed that you would ask. It would have been a different story if you'd tried to get the help that I was helping you to seek, during those months from April to December. But you didn't even try to help yourself. You are

very difficult to live with. You expect me to stop my life (actually not expected you demanded me to stop my life) and devote my total waking hours to do things for you Birch Bay has always been a bone of contention between us! I really would like to settle it once and for all. I want to pay you for what you have put into it, and make it totally ours. We have asked you numerous times. I really want to end it. I don't feel it should be fought over in a will as our love, time and hard earned money has gone into it. It is ours! I've tried a few times to reconcile with you, asking you to LET'S NOT FIGHT ANY MORE. Even took you out for a Chinese dinner and we had a long discussion and you don't remember that, or at least you say you don't. I can't try anymore, I gave up a long time ago, and this time is no different. You will never forgive me (I'm not asking you for your forgiveness either) for not letting you come into my house the 2nd time and you dominate and control all conversations. You don't care how we are or what we've done, you only care about yourself and how lousy you feel and that you are sick again! (f) The final paragraph is: This letter can be dealt with a number of ways and it is really up to you. IF you choose not to speak to me, that's your loss if you want to discuss any part of this letter, we can. IF you just want to read and respect the fact that I am a human

being with feelings, so be it. IT IS UP TO YOU. I'LL BE HERE, BUT I will not be bashed around by yourself ever again because I have decided to let you know how I feel. If you want to call me and you have something nice to say then I will be glad to hear from you but if you don't then I will not welcome your call. [74] After some conversations, on July 22, 1993, Ms. Tobin replied to this letter as follows: Further to our conversations regarding my lease papers that you have held for me since 1985 June, I feel that it shouldn't take five weeks for you to return to me, as I have requested. So would you please arrange for the papers to be picked up at B.C. Hydro and courier to [address] (before noon delivery) C.O.D. Could you also include all the information regarding the payments due every month on the cabin I don't want any more hassles like their have been. [Reproduced as written] [75] This exchange between Barbara and her mother is obviously an emotional one for Barbara and, in contrast, one where Ms. Tobin reacted by not engaging her daughter, essentially as Barbara described Ms. Tobin's character in the "feelings letter." However, it was clearly the case that Ms. Tobin intended to cut off some connections with Barbara. [76] The third estrangement between Ms. Tobin and Barbara commenced in 1995. Barbara testified that Ms. Tobin had been discharged from hospital and she went to

live with her. The first week was "okay" according to Barbara and then Ms. Tobin wanted to go back to her condo. Barbara said that she needed to be stable and should stay with her. At one point Ms. Tobin called Barbara's daughters "liars and thieves" and Barbara asked her to stop. An angry argument ensued and Ms. Tobin said she wanted to go to live with Robert. Barbara testified that she phoned him but there was no answer; Vicci denies there was any call. Barbara then took Ms. Tobin to Robert's house and left her there with her belongings. [77] In cross-examination Barbara agreed "absolutely" that the arguments she had then and on other occasions with her mother involved foul language and swearing. As well, Barbara said her relationship with her mother was deteriorating because Ms. Tobin did not want Barbara to work. At one point, according to Barbara, Ms. Tobin threw a dinner prepared by Barbara into the garbage. [78] Vicci also testified about Barbara bringing Ms. Tobin to the home she shared with Robert. Vicci said that before this Barbara proposed that she and Robert take Ms. Tobin for six months each after she left the hospital but Vicci and Robert declined because they were not equipped to deal with Ms. Tobin's mobility issues. Instead Robert and Vicki wanted to put Ms. Tobin in a care facility where they had put her on a waiting list. When Barbara took Ms. Tobin to live

with her they lost their placement at this facility. Then, about May 1995, Vicci heard a noise on the doorstep of her home. There had been no previous call from Barbara that she was coming. Vicci went to the door and saw garbage bags on the ground. According to Vicci, she also saw Barbara pushing Ms. Tobin up the stairs and Barbara was screaming at her. Barbara left Ms. Tobin on the doorstep and then drove away. Barbara's daughters were with her and Vicci testified that one of them said "Have a nice life Granny" as they left. Barbara denied this was said. [79] Vicci testified that Robert did not come to the door while Barbara was there. After she left he came and brought Ms. Tobin inside the house. The garbage bags contained Ms. Tobin's clothes and personal effects. [80] There are few differences as between Barbara and Vicci about what happened on this occasion. I accept that Ms. Tobin was abusive to Barbara's children, Barbara had clearly reached the end of her patience and she was angry as well as upset. Further, I find Vicci's description of Barbara and Ms. Tobin arriving unannounced, Barbara screaming at Ms. Tobin and Ms. Tobin's belongings in garbage bags to be an accurate account. Barbara decided unilaterally that Robert should look after Ms. Tobin and gave Robert no choice about it. It is also the case that Ms. Tobin was incapable through mental illness at the time and

it has to be said that Barbara's treatment of Ms. Tobin did not reflect that fact, even bearing in mind how difficult Ms. Tobin could be. Robert did take over the care of Ms. Tobin. [81] The estrangement between Barbara and her mother that followed this incident continued for four years. [82] Returning to the will of Ms. Tobin, again, she left cash legacies of $15,000 to each of the four grandchildren, a cash legacy of $80,000 to Barbara (or one-third of the balance of the estate, whichever is less) and the residue to Robert (as well as a 1987 vehicle). [83] Barbara was treated disproportionately by Ms. Tobin in her will when compared with Robert. However, it is also the case that Barbara is to receive a significant benefit and I find that the moral obligation of Ms. Tobin has been satisfied to a considerable extent. As to the disproportionate treatment of Barbara, I find that there is a rational reason for the different treatment of Barbara. As above, there are the three estrangements, one of them lasting four years. As evidenced in Ms. Tobin's letter of July 22, 1993, it is clear that Ms. Tobin took the May 1993 "feelings letter" of Barbara to mean that the relationship between the mother and daughter should be less. In contrast, the evidence is that Robert managed to maintain a supportive relationship with Ms. Tobin, although that undoubtedly was difficult as well. [84] In

summary, it is clear that Barbara was not disinherited and I conclude that Ms. Tobin fulfilled her moral obligations in her will with the $80,000 cash legacy to Barbara. Further, while the family relationships are not flattering to anyone, there is a logical connection between the disproportionate distribution in the will, as between Barbara and Robert, and the history between the mother and daughter. Ms. Tobin intended to favour Robert over Barbara in her will, she had a reason to do so and she was entitled to do so. [85] The plaintiff's application under the Wills Variation Act is denied. (e) Jewellery, hidden cash and other issues [86] Barbara testified that Ms. Tobin had 8-12 gold rings hidden in her apartment that Barbara estimated were worth about $45,000. When she went into the hospital she asked Robert to look after them. However, as explained in Barbara's evidence, Ms. Tobin then asked her (Barbara) to get the rings back from Robert. There was a "big argument" and Robert kept the rings. [87] In her evidence, Vicci testified that Ms. Tobin had some "very nice costume jewelry" and about five gold and diamond rings. She agreed they were appraised at $45,000. Vicci also said that Ms. Tobin gifted the rings to Robert and her. Ms. Tobin's wedding ring from her second marriage was gifted to Vicci for helping Ms. Tobin to move. At the time of trial, three of the rings were in

a safety deposit box and two were at the home of Robert and Vicci. Robert testified that Ms. Tobin gave the jewelry to him and Vicci for safekeeping and they were to keep them after Ms. Tobin died. [88] As with a number of other issues, the evidence is not clear as to the intention of Ms. Tobin with respect to the jewellery. There is no reference in the will. I note Barbara's evidence that they were given to Robert for safekeeping when Ms. Tobin went into the hospital. By itself, that does not establish a gift. The jewelry is listed as an estate asset in the Public Guardian and Trustee documents. I conclude that the jewelry is part of the residue of the estate to be divided as described in Ms. Tobin's will. [89] With respect to the hidden cash, the evidence includes Barbara's description about bringing Ms. Tobin home from the hospital in February 1995. Ms. Tobin immediately went around the house looking behind furniture and in other places. According to Barbara, she then began screaming that Robert had taken cash she had placed in these locations. As well, the June 13, 1995 note to file on the Public Guardian and Trustee's file recorded an interview with Ms. Tobin at her home in which she says essentially the same thing. [90] In their evidence Robert and Vicci denied any knowledge of hidden cash, although Robert accepted that it was "not an impossibility" because Ms. Tobin

misplaced things. [91] No one saw Ms. Tobin hiding the cash at issue. Barbara testified that "rolls of $100 bills" wrapped in duct tape were hidden but she did not see those rolls. As well, the evidence of Barbara is that the total amount that was hidden was substantial, although not specifically known. It is not at all clear where Ms. Tobin would have obtained those funds. She was a retired waitress living off of a modest pension and her primary expenditures and possible non-income earnings at this time related to her weekly Bingo games. Turning more specifically to the allegation that Robert stole the hidden money, this presumes he found all of it; that is, he discovered all of the hiding places. Further, there is no evidence he has otherwise stole money from his mother. [92] Finally, as above, the Public Guardian and Trustee did not raise any objection to the appointment of Robert as committee for Ms. Tobin in November 1995, knowing about the information on its file as to the allegation by Ms. Tobin that Robert took her hidden cash. Nor is there evidence that Barbara raised the issue of the hidden cash with the Public Guardian and Trustee and asked them to investigate it being stolen. [93] Overall, I accept that Ms. Tobin alleged to Barbara and the Public Guardian and Trustee that Robert stole her hidden cash. However, no one saw the cash and the allegation, as reported by

Barbara, includes amounts that it is unlikely Ms. Tobin would have in her possession. Finally, the Public Guardian and Trustee did not consider the allegation significant enough to prevent the appointment of Robert as a committee. [94] I conclude that there was no hidden cash, as alleged by the plaintiff, and therefore Robert could not have stolen it. [95] There are two remaining issues. [96] There is the condominium in Birch Bay, Washington State. Douglas Robertson provided expert evidence on behalf of the plaintiff with respect to this property. He was cross-examined. There was no expert evidence from the defendants. [97] Mr. Robertson advises that the current lessee of the property is "Olga Tobin" and the current lessor is Barbara. Barbara currently has possession of the condominium after a dispute with Robert that ended up with a Washington State Court Order. The Order stated that it " shall not prejudice the rights of the estate of Olga Tobin when and if an estate is filed in Washington State." To date the estate has not been filed in that jurisdiction. [98] Mr. Robertson opines that, as a result of the 2009 litigation in Barbara's favour, any action by Robert for possession would be unsuccessful on the basis of res judicata and collateral estoppel. As well, there is an existing notice of lien on the property that was filed by Robert on behalf of the estate of Ms. Tobin on

February 14, 2014. [99] The result is that the estate of Ms. Tobin has some rights over the Birch Bay condominium by virtue of being the lessee and Barbara has the right of possession by virtue of being the lessor. The resolution of that situation requires legal proceedings in the State of Washington, presumably by way of filing the estate there. To be clear, I do not have jurisdiction to determine the status of the estate of Ms. Tobin over the Birch Bay condominium and nor can I decide the interest of Ms. Tobin's estate in the Birch Bay condominium. [100] There is also an issue about a loan Barbara obtained from Ms. Tobin in 1979 in the amount of either $61,000 or $50,000. It was repaid in 1990. A promissory note was given by Barbara, it was misplaced by Ms. Tobin but eventually returned to Barbara on or about 1992. It was destroyed by Barbara in the presence of Ms. Tobin. [101] The issue now, some 30 years after the loan was made, is whether it was interest free, as claimed by Barbara. Alternatively, was Barbara to pay interest that should be part of Ms. Tobin's estate, as submitted by the defendants? [102] There is no evidence of any disagreement or even discussion between Ms. Tobin and Barbara about interest on this loan. I conclude that it was repaid to the satisfaction of both parties. [103] I should add as a final matter that the plaintiff says that Robert is holding

$50,000 that was Ms. Tobin's and is now part of her estate. The evidence for this is from the discovery of Robert where he was asked whether he had over $100,000 in cash that was Ms. Tobin's, apart from the $132,000 term deposit. Robert answered, "Off the top of my head, no." He was then asked how much cash he had from his mother and he answered, "I couldn't tell you at this moment." It was put to him that it was over $50,000 and he answered, "Might have been." And when he was asked how much it was, approximately, he said, "Might have been $50,000." [104] I do not agree with the plaintiff that this evidence supports her claim that Robert holds an additional $50,000 of Ms. Tobin's (or $100,000). The above answers of Robert, at best, suggest that may have been the case but they do not prove to the required standard what the plaintiff seeks. D. Summary [105] There is a presumption of resulting trust with respect to the creation of the joint bank accounts between Ms. Tobin and Robert in 1994. Information recorded by the Public Guardian and Trustee, after Ms. Tobin was certified as incapable, raises concerns about the relationship between Ms. Tobin and Robert. However, it is significant that the Public Guardian and Trustee did not oppose the appointment of Robert as committee knowing that information. Further. Ms. Tobin herself nominated Robert as committee at this time. In these

circumstances the presumption of resulting trust has been rebutted. [106] There is also a presumption of undue influence. However, there is no evidence of actual influence. She apparently had a plan in place to take care of her affairs, including the appointment of Robert as her attorney at the same time as the accounts were transferred. As well, these decisions were made by Ms. Tobin before her incapacity in January 1995. For these reasons, the presumption of undue influence has been rebutted. [107] The evidence does not support the plaintiff's claim that Robert misused the funds from the estate of Ms. Tobin. The accounts will have to be presented to the Registrar. [108] The plaintiff's application under the Wills Variation Act is denied. Ms. Tobin satisfied her moral obligations to Barbara by leaving a substantial cash legacy to her. As well, in light of the troubled history between Ms. Tobin and Barbara, there was a logical reason for treating Barbara disproportionately when compared to Robert. [109] The jewellery of Ms. Tobin is part of the residue of the estate and is to be distributed according to her 1994 will. The evidence does not support the plaintiff's claim that Ms. Tobin hid large rolls of $100 bills in her house and, therefore, the plaintiff's allegation that Robert stole this cash is not supported. [110] While this litigation has been hard fought between the parties it is nonetheless the case that neither party's conduct has been reprehensible. Each party's claim for special costs is denied. The defendants have been substantially successful and they are entitled to their ordinary costs from the plaintiff. "Steeves, J."