Burnaby man loses appeal over late common-law wife's estate
A Burnaby man has lost his appeal over his late common-law wife's estate, after he was unable to prove she intended to defraud him of an inheritance.
Dennis Mawdsley began living with Joan Meshen in 1988 at her home on Keith Street in South Burnaby. By then, Joan was already a wealthy woman.
She had two children from her first marriage, Shirley and Harry, and a son, Michael, by her second marriage to Art Meshen.
The beginnings of Joan's wealth was through Art's business, which started with his purchase in 1964 of 33 acres of undeveloped land at 7625 Meadow Ave. in Burnaby. The land was a large peat bog which Art excavated, mixing the peat with soil and other nutrients to form a garden mix.
When all the peat was removed, around 1977, Art obtained a change in zoning to allow demolition fill to be dumped on the property. Art's younger brother Bill worked in the business for over 40 years.
When Art died in 1983, his estate's net value was about $1.48 million, and included the Keith Street home, a home on E. 11th Avenue in Vancouver, and a half-interest in almost 10 acres of land in Surrey where Bill, who owned the other half-interest, built his family home.
After Art's death, Joan took over management of the family business where all three children also worked.
Mawdsley said after he moved into Joan's home, she convinced him to sell his West Vancouver condominium, which he did in 1991, because the Keith Street home was "as much his as it was hers," said Madam Justice Sandra Ballance in her judgment from the original 2010 trial.
In 2005, the Meadow Avenue property was sold to Antham for $7.5 million. In February 2006, Joan was diagnosed with liver cancer. At that point, her assets had a gross value of at least $10.5 million. Joan died three-and-a-half months later.
Joan's will, which named as beneficiaries her three children and brother-in-law Bill, left nothing to Mawdsley.
Mawdsley claimed in the original trial and at his appeal that Joan's actions before her death—transferring assets to her children through joint tenancy, gifts and a trust—left little in her actual estate apart from her bank account and safety-deposit boxes, thus deliberately depriving him of his rightful inheritance.
He also alleged that Joan's last will, created during her last months, had been procured under undue influence and that she lacked capacity to sign it.
The original trial judge concluded that Joan did not adequately provide for Mawdsley, and ordered that he receive the "residue of her estate" which eventually amounted to about $280,000.
The Court of Appeal judgment on Feb. 28, upheld the original decision, noting that Mawdsley was present at many of the meetings with lawyers and other estate planning professional when it was clearly discussed that Joan's children and brother-in-law would be the sole beneficiaries of her estate.
Joan was always clear that the Keith Street house would go to her son Michael, which was also the wish of Art before he died. Until the trial, Mawdsley continued to live on the main floor rent-free while Michael occupied the basement.
"It would appear that the alter ego trust seemed to [Joan] an effective way of ensuring Michael would have income in the future, protecting against possible claims by Harry’s ex-wife, and saving a not insignificant amount of probate fees."
The trial judge found that Joan and Mawdsley had an agreement that they would retain their own respective assets and money and he knew her children came first in her life. It was also the children and Bill Meshen who had built up the family business over the years, while working for modest pay.
Mawdsley "never questioned her plans and indeed allowed her to ‘trust’ that he would honour their understanding. He cannot have had an expectation that she would do anything different than what she had contemplated consistently during the last several years of her life," said the Appeal Court judgment.
In dismissing his appeal, the judges noted that while he sought $3 million from her estate, Mawdsley is 82 years old with a sufficient income and no children. It concluded that the $280,000 the trial judge awarded him is "adequate to satisfy the moral obligations of 'contemporary justice.'"