A new BC Court of Appeal WESA Unfair Wills Spouse Separation case contains an analysis of how family law and estate litigation cases can merge. Hiring an estate litigation lawyer who is also a top family lawyer makes sense in these challenging disputes.
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In WESA Unfair Wills Spouse Separation disputes you need to know that the instant a couple ceases to be spouses affects a surviving spouse’s ability to make a wills variation claim under WESA and creates rights to property division under the FLA. Under the FLA, spouses can be separated despite continuing to live in the same residence but otherwise does not contain a list of factors on what constitutes a separation. The court will review evidence of separation including communication by one spouse to the other spouse an intention to separate permanently, and any actions taken by a spouse that demonstrates the intention to separate permanently.
In Lee v Chau Estate 2021. BCCA 474, the appellant “ex-wife” appealed an order dismissing her claim to vary the will of the deceased on the basis that he had not made adequate provision for her in his will. The trial judge held that the appellant and the deceased had separated prior to the deceased’s death and, accordingly, were not spouses for the purposes of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13. The “ex-wife” argued that the trial judge erred in her analysis by failing to identify a precise date of separation.
Held: Appeal dismissed. In the circumstances of this case, the finding that the parties had been separated for years before the testator died barred the appellant’s claim. There was no need for the judge to identify the precise date of separation.1
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Here is the key analysis our highest court applied in deciding this WESA Unfair Wills Spouse Separation dispute:
It is common ground that Ms. Lee refused to consummate the marriage and that she lived with Mr. Chau at his home (the “Property”) only intermittently between 1995 and 1999 and not at all from 2008 to 2014. The judge made the following findings in this regard:
 While [Ms. Lee’s] own evidence contains some internal inconsistencies, it supports the following findings of fact:
a)She returned to Taiwan within one to two months of obtaining her Canadian citizenship in February 2002;
b)Thereafter, she remained in Taiwan for about six months, returning to Canada in or about October 2002;
c)She returned to Taiwan in about March 2003, staying there until after her mother died in January 2004, and returning to Vancouver in about March 2004, approximately one year later;
d)From 2005 to 2011 inclusive, she returned to Taiwan annually, remaining for about six months at a time, “mostly” staying with her unidentified cousin with whom she “sought refuge” when she returned to Canada as the Property “did not feel like [her] home”;
e)She was “mostly not” at the Property between 2005 and 2011;
f)In 2011, she returned to Taiwan, remaining there until her father died on November 29, 2013; and
g)She never lived at the Property between November 2013 and July 2014.
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Ultimately the BC Court of Appeal dismissed the “ex Wife’s” claim in this WESA Unfair Wills Spouse Separation case.
The judge thus concluded that, on the appellant’s own undisputed evidence, she mostly lived with her cousin when in Canada between 2005 and 2011, and resided in Taiwan full-time from 2011 until 2014. The judge also noted that Ms. Lee was not aware that Mr. Chau had been diagnosed with pancreatic cancer in 2010, that they had not had any contact immediately before his death, and that Ms. Lee had not even been aware that he had died. Accepting that evidence, the judge found that Ms. Lee and Mr. Chau “were mostly not living together for more than eight years before he died, and were living completely separate and apart for more than three years before he died”: at para. 72. She therefore found that they were not spouses at the time of Mr. Chau’s death.
Second, Ms. Lee submits the judge should not have looked to cases addressing when separation occurs under the Family Law Act, given that this was a claim under the WESA. This argument cannot succeed. WESA incorporates, as the indicia of termination of spousal status, events under Part 5 of the Family Law Act giving rise to an interest in family property. Neither Act defines separation, and both rely on that concept as it is defined in the common law. The assessment of whether spouses are separated is fundamentally the same, whether the issue arises in estate litigation or in a family law claim.
If you are a spouse and feel you have been unfairly dealt with in your partner’s Will, call our savvy WESA Unfair Wills Spouse Separation lawyers today at 1 877 602 9900