The BC Wills Variation Act and Vancouver estate litigation lawyers at the Vancouver, British Columbia unfair wills and disputed wills and estate litigation law firm of MacLean Law want you to be aware of a key new BC Court of Appeal case concerning a Wills Variation Act dispute between a common-law spouse and an adult child. If you feel you have been disinherited or unfairly treated in a will call Lorne MacLean QC of our estate litigation department immediately at 604-602-9000 today.
This case shows dramatically the interplay between the common law spouse’s entitlement to one third of the estate in the case where there is no will versus what the court will consider to be adequate provision for the maintenance and support of a common law spouse who is provided for or excluded from string under a will and it can well be higher than a one third share.
The key finding in this case is that where the deceased testator makes clear in his or her will a desire to make adequate provision for the maintenance and support of a common-law spouse and where the common-law spouse challenges the will or their share is attacked under the will by another beneficiary- unlike in cases where there is no will- the claim of the common law spouse will not be restricted to only a one third share in the estate but may well be substantially larger. In this case the deceased’s son claimed a variation of the will that left him with only $10,000 out of an estate of $432,000. He argued the common law spouse’s share in the will was overly generous but was too stingy with respect to him as the son of the testator.
In Hall V. Korejwo 2011 BCCA 355 the Court of Appeal modestly increased the provision for maintenance and support of an adult child by $40,000 over that of what the trial judge had awarded but more importantly reinstated most of the estate interest willed to a common-law spouse who had been in a 4 year relationship with the deceased back to roughly 85% of the total estate as the testator’s will had largely set out.. The trial judge had given the common law spouse only a life estate in the home but the Court of Appeal upped the award to near what the will had given the common law spouse. This case tracks other generous provision decisions for common law spouses who made claims to vary a will of their partner such as Mazur v. Berg 2009 BCSC 1770 where a common law spouse in a 6 year relationship received 55% of the estate and Rose and Bloomfield 2010 BCSC 315 where a common law spouse received 70 % of the estate after proving he paid for expenses during the relationship and he cared for the deceased during her illness. In both these cases the common law spouse demonstrated a clear financial need.
The case is complex but we provide key extracts from it below:
[19] Roy passed away on December 2, 2008. His estate had a net value of $438,000, comprised of a residence valued at $210,000 and liquid investments.
[20] At trial, Tony had assets of about $90,000. His health problems prevented him from working. He continued to reside in subsidized housing in Calgary, and was receiving a tax-free monthly pension of $1,172 from the Alberta government, which would end when he turned 65. At that point he would be reliant on a pension of an unknown but limited amount from British Aerospace and whatever government funding was available. He did not qualify for the Canada Pension Plan as he had not contributed to it.
[21] Ms. Korejwo, at the time of trial, continued to receive pension income of $2,100 monthly and had a truck valued at $5,000. She had no other assets and used some of her pension income to help her family. She had a debt of $3,000 arising from equipment she had purchased for her sister.
Did the trial judge’s variation of the will provide an adequate, just and equitable result?
[32] Section 2 of the Act governs Tony’s application to vary Roy’s will. It states:
Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may, in its discretion, in an action 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 testator’s estate for the spouse or children.
[33] An application under s. 2 is thus a two-stage process. First, the court must determine whether adequate provision has been made for the proper maintenance and support of the applicant. If not, at the second stage the court must consider what provision would be adequate, just and equitable.
[34] The parties agree Roy did not make adequate provision for Tony in his will. Their dissatisfaction lies with the trial judge’s assessment at the second stage of the inquiry.
[35] The Supreme Court of Canada discussed the principles that guide that inquiry in Tataryn v. Tataryn, [1994] 2 S.C.R. 807. McLachlin J., writing for the Court, observed that s. 2 gives the court broad discretion in advancing two interests protected by the Act. The first is ensuring adequate, just and equitable provision for a testator’s spouse and children. The second is testamentary autonomy. If the second must yield to the first, the ultimate question is “what is adequate, just and equitable in the circumstances judged by contemporary standards”. In answering that question, the Court will be guided by two sets of norms. The first are the testator’s legal obligations to a spouse or children. The second are the moral obligations to family members that arise from reasonable expectations of what a judicious person would do in the circumstances. Claims based on legal obligations will generally take precedence over those based solely on moral duties. The court should recognize the testator’s “legitimate concerns” in assessing the extent of any moral obligations, and be aware there may be a wide range of appropriate options in judging whether the dispositions meet the requirements of the Act. As long as the options chosen fall within that range a testator’s freedom to dispose of the estate should be treated with deference.
[36] The Court also stated that, if the issue is the adequacy of a bequest to a spouse, the starting point for the testator’s legal obligations will be the legislation and common-law governing spousal support and division of family assets. If the claim is made by an adult independent child, it is less likely the applicant will be able to establish the testator owed a legal duty, unless the child contributed to the estate. As to a testator’s moral obligations to family members, the Court observed that these are less certain as there is no legal standard by which they are judged. Nevertheless, it allowed there is a general consensus that a supporting spouse should make provision for a dependent spouse. The moral claims of an adult independent child are more tenuous, but may justify provision if the circumstances do not negate such an obligation. In each case, the size of the estate is a relevant factor.
[37] Tony argues the trial judge’s provision of a life interest to Ms. Korejwo failed to take into account that he and Ms. Korejwo are of a similar age, and it is therefore improbable he will obtain any significant benefit from receiving the residue of Roy’s estate. Further, he says the trial judge failed to give sufficient weight to his poor health, his inability to work, and his limited and uncertain pension income. While he acknowledges his lengthy estrangement from Roy, he says this was primarily due to Roy’s mistreatment of Jean, and he repaired his relationship with Roy and was a caring son to him in the last year and a half of his life.
[38] Tony accepts Roy owed a legal duty to Ms. Korejwo as his common-law wife but says this should result in a bequest limited to provision of spousal support, since the provisions of the Family Relations Act, R.S.B.C. 1996, c. 28, that deal with division of family assets do not apply to unmarried partners. He says the size of her bequest must be limited because her relationship with Roy lasted only four years, she did not give up a career to look after Roy and his home, and she benefitted financially from their arrangement. Moreover, she is in good health and has pension income in excess of his. Tony maintains an adequate bequest to Ms. Korejwo should be in the range of $50,000 to $75,000, with the residue of the estate to him.
[44] Dealing first with Ms. Korejwo’s claim, I am not persuaded that s. 85 of the Estate Administration Act has any direct role to play in considering what is adequate, just, and equitable under s. 2 of the Act. Ms. Korejwo’s argument to that effect begins with these observations of Mr. Justice Low in Picketts:
[54] Although McLachlin J. in Tataryn did not discuss the Estate Administration Act, R.S.B.C. 1996, c. 122, or its applicable predecessor, under the topic of legal obligations, I think that statute bears mentioning at this point. The provisions in the statute as to intestacy succession create a default succession in law if a person should die without a will. Section 85 states that, on an intestacy in which there is a surviving spouse and a surviving child or surviving children, the spouse is entitled to the first $65,000 of the estate and half of the residue if there is one child surviving, and one-third of the estate if there is more than one child surviving.
[55] In the unlikely event that Mr. Hall had died intestate, Ms. Picketts would have received one-third of the entire estate. This is because the definition of “common law spouse” in the Estate Administration Act was amended by the Definition of Spouse Amendment Act, S.B.C. 1999, c. 29, to mean, inter alia, “a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between two persons of the same gender, for a period of at least 2 years immediately before the other person’s death”. This is essentially the same definition as the definition of “spouse” in the Wills Variation Act. The two definitions became law on the same date.
[56] Although the intestacy provisions of the Estate Administration Act do not directly affect the legal considerations under Tataryn, it is significant that the Legislature chose to amend both statutes at the same time. This can be seen as a dovetailing of the two statutes to reflect the social norms of the day and, to repeat the quote from Tataryn at p. 822, to “reflect a clear and unequivocal social expectation, expressed through society’s elected representatives …”
[45] Ms. Korejwo then points to Mr. Justice Cohen’s interpretation of those comments at para. 49 of Rose:
It is not known whether the decision in Hecht v. Hecht Estate was cited to Low J.A. Regardless, I do not agree with the defendants’ interpretation of Low J.A.’s reasons. In my opinion, His Lordship clearly adopted the distribution scheme legislated under the EAA as a means by which to assess whether a testator’s provision for a spouse is “adequate, just and equitable”. Accordingly, I am satisfied that in the case at bar it is open for me to take guidance from the scheme of distribution set out in the EAA when determining whether the Will made adequate provision for the plaintiff, and in my consideration of an appropriate discretionary distribution of the deceased’s estate.
[46] With respect, I cannot agree that is an accurate interpretation of Mr. Justice Low’s comments. As he stated, the provisions of the Estate Administration Act represent a default position when there is no will and the testator’s wishes are unknown. They therefore cannot directly affect the considerations that govern applications under the Act, when the testator’s intentions are clearly set out in a will, and the court is entitled to consider a range of options in judging whether it should defer to testamentary autonomy. As Mr.Justice Low stated, the Estate Administration Act simply provides some indication of contemporary standards.
[47] I do agree, however, that Ms. Korejwo’s claim is not limited to Roy’s legal obligation to pay spousal support to her. That starting point is clearly amplified by a substantial moral obligation: Picketts at paras. 52-53, 58. Ms. Korejwo was, in Roy’s words, a faithful and loving companion to him. She nursed him through his final illness. He promised to look after her. The trial judge interpreted that promise as limited to her lifetime. That may be so but, as described earlier, the variation he ordered fails to accomplish that objective. I am satisfied the only means of honouring Roy’s legal and moral obligations to Ms. Korejwo, as well as his testamentary wish, is to reinstate the disposition of the residue of his estate to her.
