30 Year Commonlaw Spouse Awarded $150,000 More Than His Half of the Assets

Griese v Syvret 2013 BCSC 1601 is a wills very action trial involving a couple that lived in a commonlaw relationship for 30 years before the death of the commonlaw spouse in 2010 at age 84.

Her major asset was the matrimonial home which they both purchased by contributing an equal amount, that was registered as tenants in common at her death. Her surviving spouse obtained his one half interest in the property worth $727,000, however the wife left her entire estate but for a dining room suite, to a child that she had never adopted, but had raised since the age of six years as her own. The child had been abandoned in an orphanage due to a birth defect. At the time of the trial, the young man was earning $60,000 a year and his wife was earning 30,000.

The issue before the court was what if anything more ought the surviving spouse receive from the deceased in recognition of her legal and moral obligations to him.

The court took some guidance from the statutory scheme of distribution as set out in the estate administration act, had the deceased died intestate.

After careful analysis, the legal discussion of the which follows hereafter, the court awarded the husband a lump sum of $150,000.

In Tataryn (at p. 821) McLachlin J. (as she then was), writing for the Court explained that together these societal norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.

[61] Also in Tataryn the Supreme Court of Canada recognized the importance of protecting testamentary autonomy, where (at pp. 823-4) McLachlin J. stated:

I add this. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires.

[62] The approach in Tataryn was carefully summarized and grounded in principles of family law by Martinson J. in Steernberg v. Steernberg, 2006 BCSC 1672 as follows (unattributed paragraphs refer to Tataryn):

[59] The language of the WVA confers a broad discretion on the Court, which allows judges to craft results that are just in the specific circumstances of the case and which are adequate, just and equitable in light of contemporary standards, values and expectations (at ¶15). The WVA addresses two main interests – the “adequate, just and equitable provision for the spouses and children of testators” and testamentary autonomy; testamentary autonomy must yield to what is “adequate, just and equitable.” (at ¶16-17).

[60] In looking at current societal norms, two sorts of norms are available and both must be addressed (at ¶28); together they provide a guide as to what is adequate, just and equitable in the circumstances. They are legal obligations and moral obligations.

[61] Legal obligations 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” (at ¶28). The legal obligations may be found in the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), family property legislation, and the law of unjust enrichment (at ¶30). When, as in this case, the parties are not separated or divorced at the time of death the law nonetheless imposes uncrystallized legal obligations that a testator owes to his or her spouse (at ¶28).

[62] Second, the Court should consider the testator’s moral obligations to his or her spouse and children, in light of “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (at ¶28). With respect to the moral obligation to a spouse, the Court concluded that most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after death, a strong moral obligation to do so exists if the size of the estate permits. The moral obligation is broader than the legal obligation and is assessed at the date of death.

[63] The moral duty is customized to each specific claimant. The test in determining whether a testator spouse has breached his or her moral duty is whether, as a just husband or wife he or she properly considered the situation of his or her spouse and an appropriate standard of living for that person: Holland v. Holland (1995), 9 E.T.R. (2nd) 119 (B.C.S.C.).

[64] The moral claim of independent adult children is more tenuous than the moral claim of spouses. But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made (at ¶31).

[65] Circumstances that will negate the moral obligation of the testator are “valid and rational” reasons for disinheritance. To constitute “valid and rational” reasons for disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance: Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (B.C.C.A.); Clucas v. Clucas Estate (1999), 25 E.T.R. (2d) 175 (B.C.S.C.); Comeau v. Mawer Estate (1999), 25 E.T.R. (2d) 276 (B.C.S.C.); and Kelly v. Baker (1996), 15 E.T.R. (2d) 219 (B.C.C.A.).

[66] As between moral claims, some may be stronger than others. The Court must weigh the strength of each claim and assign to each its proper priority. In doing so, the Court should take into account the important changes resulting from the death of the testator. There is no longer any need to provide for the person who died and reasonable expectations following upon death may not be the same as in the event of a separation during lifetime. A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes. Any moral duty should be assessed in light of the person who dies’ legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children: Tataryn at ¶32.

[67] The test of what is “adequate and proper maintenance and support” as referred to in s. 2 of the WVAis an objective test. The fact that the testator was of the view that he or she adequately and properly provided for the disinherited beneficiary is not relevant if an objective analysis indicates that the testator was not acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards: Tataryn; Walker v. McDermott, [1930] S.C.R. 44; Price v. Lypchuk Estate (1987), 11 B.C.L.R. (2d) 371 (C.A.); Clucas, above; and Dalziel v. Bradford et al.(1985), 62 B.C.L.R. 215 (B.C.S.C.).

[68] When possible, all claims should be met. However, if an estate is not large enough to accommodate both the testator’s legal and moral duties, then the legal duties should take priority (at ¶38).

[69] In many cases there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the Court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires (at ¶33).

[63] About fifteen years after Tataryn the British Columbia Court of Appeal decided Picketts v. Hall (Estate), 2009 BCCA 329. In Picketts, Mr. Justice Low, writing for the Court, addressed the issue of the legal and moral duty owed by a testator to a common law spouse, and whether different considerations apply to a common law spouse than to a married spouse in an application to vary a will.

[64] The facts in Pickettswere that Mr. Hall and Ms. Picketts had lived together for 21 years as though they were a married couple. On Mr. Hall’s death, Ms. Picketts was 75 years of age. He left two adult sons, and an estate worth $18,000,000.

[65] Under his will, Mr. Hall left Ms. Picketts the condominium they had been living in, and $2,000 per month for her life. The Court of Appeal awarded Ms. Picketts $5,500,000, an amount close to one-third of the value of the estate, which was the amount she would have received under the provisions of the EAA.

[66] Low J.A. dealt with Mr. Hall’s moral obligation to Ms. Picketts and the application of the EAA, as follows:

[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…”

[67] In Rose v. Bloomfield, 2010 BCSC 315, it was argued unsuccessfully before Mr. Justice Cohen (in light of the above comments of Low J.A. with regard to the distribution scheme of EAA) that the provisions of the EAA with regards to intestacy ought not to be taken into consideration when assessing whether a testator’s provision for a spouse is “adequate, just and equitable”. Cohen J. concluded:

[49] 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.

[68] In the present case, I take some guidance from the scheme of distribution set out in the EAA. Had Ms. Jacques died intestate, the defendant would not be entitled to a share of her estate under the EAA. He would not qualify as “issue” and by virtue of s. 83 of the EAA, the plaintiff as the deceased’s spouse would receive her entire estate. Pursuant to s. 85 of the EAA, in the event that the defendant had been adopted and the net value of the deceased’s estate exceeded $65,000, the plaintiff as spouse would receive the first $65,000 and the balance would be split in half between the plaintiff and the defendant.

[69] I also note that had the deceased not made the defendant a beneficiary of her estate, he would not be entitled to bring a claim pursuant to the WVA to challenge the Will. This is because the defendant is neither a natural nor an adopted child. An expanded definition of child is not permitted, for example to include foster children:Peri v. McCutcheon,2011 BCCA 401.

[70] Also of note are the comments of Low J.A. in Pickettsregarding competing claims to an estate as between adult independent children and a loyal spouse:

[60] Cases decided by this court since Tataryn are of limited assistance because the present case is unusual on its facts. I will, however, refer to one case.

[61] In Bridger v. Bridger Estate, 2006 BCCA 230, the testator’s estate was valued at about $311,000 and the trial judge varied the will that favoured three daughters from a first marriage over the testator’s second wife of 38 years. In writing for the majority to dismiss the appeal, Mackenzie J. A. said this:

[20] … Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults. While, as McLachlin J. observes in Tataryn, there may be a number of options for dividing assets by a testator which are adequate, just and equitable, I do not think they include a disposition that entirely prefers the moral claims of adult independent children to those of a loyal spouse who provided care for the testator over years of debilitating decline…

[62] It seems to me that it is also not a viable option for the court to approve a disposition that substantially prefers the moral claims of adult independent children to those of a long-term, caring and dedicated spouse.

[Emphasis added in Picketts]

[71] In deciding whether or not the deceased’s Will made adequate provision for the plaintiff, her long-term spouse, I find certain aspects of the evidence to be of particular note, namely:

o Apart from the Aldergrove property and the likelihood that the plaintiff provided some additional financial support to Ms. Jacques after she retired and he continued to work, fundamentally they kept their financial affairs separate;

o In purchasing their only residence together after about seven years of cohabitation, they purchased it as tenants in common as opposed to joint tenants;

o They both contributed approximately equally to the purchase of the Aldergrove property from their separate financial resources;

o Neither Ms. Jacques nor the plaintiff made provision for the other in their wills (with the exception of Ms. Jacques leaving the plaintiff the dining room set and her half interest in the Aldergrove property as an alternate beneficiary, if the bequest to the defendant failed);

o The deceased raised the defendant as her son from within six months of his birth and persevered in doing so after her husband died;

o The deceased had a close relationship with the plaintiff as her common law husband of 30 years as of the time of her death, and he provided considerable care and comfort to her in the last months of her life;

o The deceased also had a very close relationship with the defendant who was essentially her only child in all ways except that he was not adopted by her;

o The plaintiff contributed approximately $80,811 in terms of maintenance and repairs to the Aldergrove property; the deceased contributed an unrecorded amount likely to be less than $10,000;

o As the plaintiff has received payment for his half interest in the Aldergrove property he has already reaped the benefit of half of any such expenditures;

o The plaintiff is not in particular financial need at this time, and given his age is in generally good health and enjoying life; and

o The defendant is not in financial need as he is an adult person of independent means.

[72] In the present case when I analyze the legal and moral obligations of the testatrix to the plaintiff in the context of Tatarynand the jurisprudence that follows, I find that she did not make adequate provision for her common law spouse of 30 years. I assess her “uncrystallized” legal obligation to the plaintiff at the time of her death to have been modest spousal support. I note that his retirement income was approximately twice the amount of hers, so in practical terms, had the parties separated, the plaintiff likely would have been required to pay her a very modest amount of spousal support. Their “family assets” under the Family Relations Act, R.S.B.C. 1996, c. 128 would have been divided much as occurred upon her death.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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