Spouse Claim Dismissed Due to Joint Tenancy

Claim Dismissed

Spouse Claim Dismissed

Eckford v Van Der Woude 2013 BCSC 1729 involves a wills variation that dismissed the surviving spouse’s claim under the wills variation act, by reason that she inherited the matrimonial home as a surviving joint tenant.

The deceased had left a will dated September 2005 dividing his estate between his two children and his mother. The deceased died in 2010. The plaintiff had dated the deceased since teenagers and ultimately married and had a son until their separation in 2002.

They however continued a romantic relationship thereafter and in fact it was common ground that they lived common-law for four years prior to his death.

The plaintiff received his one half interest in the home by rate of her survivorship and the total value of the  other assets in the estate was $300,000 net comprised of a rental property and RRSPs.

The plaintiff argued that the entire estate should of been left to her for her maintenance and support saying that the three children of the deceased were growing and self-supporting, and that is a spouse her legal interests came before their moral claims.

The court reviewed a number of factors including that the plaintiff earned substantially more than the testator throughout the years of cohabitation.

The plaintiff argued that she had declining health such as diabetes prior to the testator’s death, and that it should of been for Siebel to the testator that she would not be able to work in the future and that she would require financial support.

The court stressed that the plaintiff is not suffering from financial hardship given that she had total assets of approximately $535,000.

The court stressed that the date to consider whether adequate provision had been made for a beneficiary is as of the date of death.

In the judge dismissed the surviving spouse’s claim under the wills variation act, but did depart from the usual rule of costs that the warden’s of costs follow the event ie loser pays.

The court however in these circumstances ordered that the children who won the claim were entitled to have their costs paid as special costs from the estate (full indemnity), meaning that the plaintiff did not have to pay the winning parties legal costs.

 

 

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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