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5 Best Vancouver Support Variation Tips

Vancouver Left Out Wills Variation Lawyers deal with cases where spouses and children have been excluded from a Will or have received an unfairly low share of the estate. If you are a victim of being left out of the will or have been disinherited in BC, call our skilled MacLean Estate Litigation, Lawyers. We know there are remedies available to you and that it makes good sense to hire award winning estate and family lawyers to sort things out so you can obtain justice.

MacLean’s Vancouver Left Out Wills Variation Lawyers help people who have been unfairly left out of the Will obtain justice. Lorne N. MacLean, QC founder of MacLean Law’s Vancouver Left Out Wills Variation Lawyers explains that a testator is given a reasonable amount of autonomy in deciding how their estate is divided,. However, as our Wills Variation Lawyers know, the Will maker has a legal and moral obligation to make reasonable provision for their spouse and children. What happens when the parties enter into a marriage or cohabitation agreement that says the surviving spouse gets nothing? Does this make a Will leaving a spouse out of the estate entirely is bulletproof? As the case of  Brown v. Terins, 2016 BCSC 42 (CanLII) points out the existence of marriage or cohabitation agreement is a factor but not a complete defence to a Wills Variation claim under WESA.

Our top rated* Vancouver Left Out Wills Variation Lawyers know that the new Family Law Act treats married and unmarried persons in a marriage like relationship that lasts longer than 2 years the same for property division purposes. One test for fairness under a Will in regards to a spouse follows the famous case of Tataryn that compares what a spouse would receive on separation to what they got in the Will.

Vancouver Left Out Wills Variation Lawyers

In the Brown v Terins case, a judge analyzed a 14 year common law relationship, noted the cohabitation agreement gave the wife nothing, concluded it would be varied as significantly unfair to give the wife potentially $300,000 and finally, decided,  that the combined legal and moral obligation meant the wife should get $500,000 of the deceased’s $2,000,000 estate with the rest going to his two daughters of a prior relationship. Here is what the judge said:

[1] This is a wills variation action. John Terins died suddenly on 31 March 2014 at age 76. When he died, the plaintiff Sharon Brown had been his common-law spouse for 14 years. This was a second spousal relationship for both Mr. Terins and Ms. Brown, and each entered the relationship with independent adult children — Mr. Terins’ two daughters and Ms. Browns’ four sons. The defendants Tara Terins (“Tara”) and Ria Terins (“Ria”) are Mr. Terins’ daughters.

In June 2001, Ms. Brown and Mr. Terins signed a document titled “Cohabitation Contract”:

3. We shall each execute a Last Will and Testament which provides that our respective estates, both real and personal, shall go to our own issue according to our individual wishes.

[2] Mr. Terins’ last will, executed in 2010, leaves the residue of his estate in equal shares to his daughters, and appoints them co-executrices of his will and co-trustees of his estate. The will makes no provision for Ms. Brown, who seeks an order that the estate make adequate provision for her as the will-maker’s spouse, pursuant to s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA].

[13] The parties agree that Mr. Terins and Ms. Brown were in a marriage-like relationship dating back to 2000, and thus Ms. Brown was a “spouse” as defined by s. 2 of the WESA. The fundamental question in this case is whether Mr. Terins’ will makes adequate provision for the proper maintenance and support of Ms. Brown. Section 60 of the WESA provides:

Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding 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 will-maker’s estate for the spouse or children.

[14] There are two interests protected by this wills variation legislation: the primary interest of promoting adequate, just and equitable provision for a will-maker’s spouse and children, and the secondary interest of testamentary autonomy. See Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807. These sometime conflicting interests are accommodated by considering whether the will-maker’s arrangement of his affairs is “within the range of testamentary autonomy entitled to deference”: Saugestad v. Saugestad, 2008 BCCA 38 (CanLII) at para. 39. Any variation of the will must be limited to the extent required to make adequate provision: Tataryn, at 823-824.

Cohabitation Agreements No Bar

It is common ground that Ms. Brown’s wills variation claim is not barred by the cohabitation agreement. The agreement that each would execute a will providing that their individual estates would go to their own issue — and the fact that each of the spouses executed a will consistent with this agreement — does not end the analysis. Having regard to the public interest and the scope and policy of the wills variation statute, the obligations of Mr. Terins must be examined in the complete factual context existing at the date of his death. A cohabitation agreement ought to receive consideration, but even an agreement that is fair, solemn and well-considered is unlikely to be a complete answer to a wills variation claim. See Boulanger v. Singh (1984), 1984 CanLII 403 (BC CA), 59 B.C.L.R. 383 at 389 (C.A.); Wagner v. Wagner Estate (1991), 1991 CanLII 5739 (BC CA), 62 B.C.L.R. (2d) 1 at paras. 31-32 (C.A.); Steernberg v. Steernberg, 2006 BCSC 1672 (CanLII) at paras. 70-87; Morgan v. Pengelly Estate, 2011 BCSC 1114 (CanLII) at paras. 145-176.

$500,000 Awarded

[17] In short, it is necessary to examine Mr. Terins’ legal responsibilities and his moral obligations in the full context of the facts as they existed or could have been reasonably foreseen by Mr. Terins at the date of his death in order to determine whether Mr. Terins made adequate provision for Ms. Brown.

[55] Recall that despite a substantial reapportionment in the notional hypothetical property allocation, there remains a significant legal responsibility owed by Mr. Terins to Ms. Brown in the approximate sum of $300,000. Mr. Terins also owed a moral obligation to his daughters and a moral obligation of lesser weight to Ms. Brown. Tataryn mandates that all conflicting claims should be met where the size of the estate permits (p. 823). Mr. Terins’ estate is large enough to meet all legal and moral claims.

[56] The dispositions in Mr. Terins’ will clearly met his obligation to his daughters but did not meet the legal and moral obligation to Ms. Brown. In the language of s. 60 of the WESA, I conclude that Mr. Terins did not make adequate provision for the proper maintenance and support of his spouse. By making no provision for her, he acted outside of the range of testamentary autonomy entitled to deference.

[63] I conclude that in addition to Ms. Brown’s continuing residence in the Kitsilano home for two years, a payment of $500,000 to Ms. Brown is necessary in order that the legal and moral obligations to Ms. Brown are attended to. In my opinion, the combination of her continuing residence in the Kitsilano home and the $500,000 payment is adequate, just and equitable provision in accordance with the requirements of s. 60 of the WESA.

Vancouver Left Out Wills Variation Lawyers can help but only if you call immediately as strict time limits apply to Wills variation claims. Call us across BC and Calgary toll free at 1-877-602-9900.