Our new BC Wills Estate and Succession Act “WESA” allows spouses in a common law or “marriage like relationships” to inherit the entire estate of the deceased when the deceased leaves no Will at the time of death and has no direct descendants. These WESA intestacy marriage like relationship claims can be dealt with in a summary fashion particularly if the estate is nominal in value. This week, a Supreme Court Judge decided BC’s first WESA intestacy marriage like relationship claim in a case called Richardson Estate where a common law wife faced the opposition of the deceased’s brother who said she lived in a different home part of the time and they were not a couple. The judge disagreed and awarded the full $105,000 balance of the estate to the common law wife.
The judge restated the law of BC to be applied to see if a couple are in a common law also known more properly now as a “marriage like relationship”:
[20] Section 2 of WESA defines a spouse as follows: When a person is a spouse under this Act 2 (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and (a) they were married to each other, or (b) they had lived with each other in a marriage-like relationship for at least 2 years.
[21] If the applicant is the spouse of Mr. Richardson s. 20 of WESA applies: Spouse but no descendants 20 If a person dies without a will leaving a spouse but no surviving descendant, the intestate estate must be distributed to the spouse.
[22] A leading authority with respect to the meaning of “marriage-like relationship” (sometimes also referred to as “cohabitation”, Campbell v. Campbell, 2011 BCSC 1491 at para. 80) is Molodowich v. Penttinen (1980), 17 RFL (2d) 376 (ONDC):
[16] I propose to consolidate the statements just quoted by considering the facts and circumstances of this case with the guidance of a series of questions listed under the seven descriptive components involved, to varying degrees and combinations, in the complex group of human inter-relationships broadly described by the words “cohabitation” and “consortium”:
(1) SHELTER:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements? (c) Did anyone else occupy or share the available accommodation?
(2) SEXUAL AND PERSONAL BEHAVIOUR:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness? (g) Did they buy gifts for each other on special occasions?
(3) SERVICES: What was the conduct and habit of the parties in relation to:
(a) Preparation of meals,
(b) Washing and mending clothes,
(c) Shopping,
(d) Household maintenance,
(e) Any other domestic services?
(4) SOCIAL:
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
(5) SOCIETAL: What was the attitude and conduct of the community towards each of them and as a couple?
(6) SUPPORT (ECONOMIC):
(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) CHILDREN: What was the attitude and conduct of the parties concerning children?
[23] Other authorities have emphasized that this is not a checklist and “these elements may be present in varying degrees and not are all necessary for the relationship to be found conjugal” (M. v. H., [1999] 2 SCR 3 at para. 59; cited in Austin v. Goerz, 2007 BCCA 586 at para. 57; the Court of Appeal equated “conjugal” with “marriage-like” in the same paragraph).
[24] In Austin, at para. 58, the Court of Appeal also adopted the following statement from a Saskatchewan case (Yakiwchuk v. Oaks, 2003 SKQB 124):
[10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. …
In this case the court noted there was overwhelming evidence the deceased and the woman claimimh herself to be his spouse were in a marriage like relationship. The case raises concerns where parties enter into new relationships after divorce or separation and one spouse dies without a will or in certain darker situations gets victimized in predatory marriages. It always makes sense to ensure a proper Will is prepared to avoid these type of estate disputes.
Our WESA dispute and unfair Wills lawyers are always ready to assist you at a time when emotions run high and emotional as well as financial loss exists upon the death of a loved one. Call us to meet with us at any of our 4 offices across BC at 1-877-602-9900.
