What’s The Test For A Claim By A BC WESA Spouse in Marriage Like Relationship To Get A Share Of The Estate?
Important issues arise for many of our clients under British Columbia’s Wills, Estates and Succession Act, commonly referred to simply as WESA. We strongly recommend discussing any estate issues you may have with our estate litigation lawyers at MacLean Law. We have offices in Fort St John, Kelowna, Surrey and Vancouver BC.
Today’s overview of the Supreme Court’s decision in McFarlane v. Sawatzky, 2014 BCSC 1449 addresses the issue where the will-maker, Mr. Goodburn upon his death in 2011 made no provision for the plaintiff, Elizabeth McFarlane, with whom he had lived with since 2000, after the death of his wife.
It is also important to mention to our clients that although this claim is brought forth under the old Wills Variation Act, R.S.B.C. 1996, c. 490 (the “WVA”). WESA has not changed its principles. The following extracts are taken from the Judge’s Reasons For Judgment.
The facts of this case can be summarized as follows:
- Mr. Goodburn died on May 11, 2011 at the age of 77. In his will, which had been made a year prior to his death, he made specific, modest bequests to one daughter, and to that daughter’s child, and left the residue of his estate to three other children and eight other grandchildren, a one-eleventh share each.
- Mr. Goodburn’s will made no provision for the plaintiff, Elizabeth McFarlane.
The Court determined two key issues from the facts:
a) Whether the plaintiff and Mr. Goodburn lived and cohabited with one another in a marriage-like relationship for a period of at least two years. If the answer is yes, then the plaintiff will satisfy the definition of “spouse” under the WVA;
b) If the answer to (a) is yes, then I must determine whether Mr. Goodburn’s will made adequate provision for the proper maintenance and support of the plaintiff, and, if not, what provision is adequate, just and equitable in the circumstances.
Was Elizabeth McFarlane the spouse of Mr. Goodburn?
The test of determining whether or not one meets the criteria of “spouse” is both an objective and subjective one. (It is important to mention that Section 2 of WESA now addresses when a person becomes a spouse for the purposes of the act.)
In addressing this issue, the court examined various facts of the relationship between the two and applied the criteria set out in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) The court stated marriage-like relationships occur when couples “shared shelter, sexual and personal behaviour, services, social activities, economic support, and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. … “ the Court further explained that in order to fall within the definition couples are not required to fit precisely into the traditional marital model to demonstrate that the relationship is “conjugal”.
After examining all of the facts, the court concluded that Ms. McFarlane did meet the criteria as “spouse”. Justice Saunders stated “In my view, there were sufficient objective indicators in this case for the couple to be regarded as spouses. They shared the plaintiff’s home and they shared her bed. The plaintiff provided care and support to Mr. Goodburn to the degree and in the manner of someone who was more than simply a friend. In their interactions with members of her family, and in their other social interactions, they would have appeared to function as a unit.
Since the court classified Ms. McFarlane as a spouse, the next issue to determine is the adequacy of the Will’s provisions in relation to her.
Adequacy of the Will’s Provisions
To determine the adequacy of the Will’s provisions for Ms. McFarlane the court applied the test in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807:
“If the phrase “adequate, just and equitable” is viewed in light of current societal norms, much of the uncertainty disappears. Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.”
Accordingly, in order to make adequate, just and equitable provision for the plaintiff, I order that the will be varied to provide for a bequest to the plaintiff in the amount of $90,000
Our experienced estate litigation team is adept at dealing with the issues respecting marriage-like relationships either as it relates to a relationship breakdown or how it affects a claim to vary a BC will. Call us now at 1-877-602-9900 if you have concerns related to a disputed wills variation claim.
