The District of North Vancouver won’t be getting a new park on Wellington Drive.
That’s the end result of a recent B.C. Supreme Court case that hinged on the last will and testament of Evelyn Winnifred Donovan.
Upon her death in 2011, Donovan left her home at 875 Wellington Drive, assessed at $3,570,000 based on redevelopment potential, to the District of North Vancouver. The bequest was made on the strict conditions the land would be used in perpetuity as a park and the municipality would forgive all deferred property taxes.
The district’s attempts to take the 2.84-acre parcel were soon stymied when the estate’s executrix and Donovan’s daughter, Delma Lynne Dennis, voiced concerns the estate could be on the hook for a sizable tax liability.
If the Canada Revenue Agency rejected the property’s assessed value — based on a six-lot subdivision — the estate’s tax benefits would be greatly reduced, noted Justice E.A. Arnold-Bailey in her ruling.
Lawyers for the District of North Vancouver argued that all the conditions of the will would be met and that Dennis’ failure to hand over the land amounted to an improper use of her discretion.
Justice E.A. Arnold-Bailey sided with Dennis in her ruling.
While Donovan’s will included a charitable aspect, its primary purpose was to “advance the financial interests of the estate by creating a potentially significant tax advantage,” she wrote. Donovan’s will also clearly granted discretion to Dennis, according to Arnold-Bailey.
The court doesn’t interfere in discretionary decisions unless the executor has acted unfairly or in bad faith.
“The evidence supports the conclusion that she has acted fairly and in good faith,” Arnold-Bailey stated.
Dennis was under no obligation to give the land to the district despite the district’s unfortunate pursuit of the bequest, according to Arnold-Bailey.
“With the benefit of hindsight the district would have been well advised not to have accepted the bequest in the first place without additional safeguards in place,” she ruled.
Donovan first approached the district about bequeathing the densely forested parcel to the municipality in 1997.
Council jumped at the offer, passing a resolution thanking Donovan and reimbursing Donovan and her husband for $3,400 in legal and accounting expenses.
“If this bequest proceeds, it would be the first of its kind and could serve as a model for others,” stated the district’s property negotiator Helen Baxter at the time.
After Donovan’s death in September 2011, district council moved to accept the bequest in late January 2012.
Before council made their move, Dennis announced plans to sell the property. Discussions regarding the district’s ability to satisfy the conditions of the will lasted through most of 2012.
At a 2012 meeting, one of the estate’s beneficiaries indicated the family wanted to keep the property.
The district had planned to rename the parcel Donovan Park.
Note: this story has been modified since first posted.
