Marriage Separation Agreement
Ward v. Ward et al, 2006 BCSC 448 is one of a few BC court decisions that hold that a marriage separation agreement is not a bar to a claim subsequently brought under the Wills Variation act by a surviving former spouse.
The rules applying to Wills Variation claims are different from the harsher divorce laws as per the Supreme Court of Canada’s decision in Hartshorne v Hartshorne (2004) SCJ NO. 20 ( SCC)
The defendants, Ward and David Ward, are beneficiaries of their deceased father’s estate. Their father, David Forsyth Ward, divorced their mother and, in 1986, married the plaintiff, Shirley Ann Ward.
Two days before their wedding, David Forsyth Ward and Shirley Ann Ward signed a pre-nuptial agreement (the “marriage agreement”), clause 14 of which states:
14. The Wife is not either during the Husband’s lifetime, or after his death, should he predecease her, save and except as may be expressly provided in a valid Will and Testament of the Husband, to take, claim,demand or receive any right in any property that he might own at his death, nor is she to demand, take or receive any dependant’s award or allowance as provided for by the Wills Variation Act, or similar legislation; AND SAVE as otherwise herein provided each party hereby forever waives, releases and relinquishes to the other and to the heirs, executors, administrators, devisees, legatees and assigns of the other all rights, interest or claims of inheritance and to a distributive share in the estate of the other (in the event of intestacy), either as widow, widower, heir, survivor, distributee, or next of kin in and to all of the estate of the other whether now owned or hereafter acquired.
David Forsyth Ward died in September 2004. By a will dated December 22, 2000, he left the entirety of his estate, with the exception of his pension benefits, to his two adult sons (the “will”).
In April 2005, the plaintiff commenced an action claiming, in part, under s. 2 of the Wills Variation Act, R.S.B.C. 1996, Chap. 490, for a declaration that the will fails to make adequate provision for her proper maintenance and support.
The court firstly reviewed some existing case law :
“In Boulangerv. Singh,  B.C.J. No. 3163 (C.A.), the court upheld the decision of the trial judge that the separation agreement was not a bar to recovery under the Wills Variation Act. Without discounting in any way the evidentiary importance of the separation agreement, the court said this:
Thus, an agreement between parties may be perfectly suitable at the time it is made, and it may be treated as binding upon the parties during the lifetime of the testator. But, having regard to the scope and policy of the statute and the public interest, the moral duty of the testator may have to be reviewed in a wider context, and in the light of the circumstances existing at the date of the death of the testator.
Later, the court referred to the “facts of their marriage, separation arrangements and conduct after separation” as affecting the appellant’s moral claim upon the testator (at para. 29). The court reapplied the Boulangerlest in Wagner v. Wagner Estate,  B.C.J. No. 3404 (C.A.). There, the court reaffirmed that the moral duty must be assessed as at the date of the death of the testator.”
Finally, counsel referred to the trial and appellate court decisions in Chutter v. Chutter Estate. I need only refer to the latter, found at  B.C.J. No. 653 (CA), in relation to the issue at hand, namely whether the agreement operates as an automatic bar. Mackenzie J A., for the court, stated:
The trial judge correctly, in my respectful view, did not consider the separation agreement to be an automatic bar to the appellant’s claim, but that it was a factor to be considered in weighing the merits of the appellant’s moral claim, (para. 9)