The plaintiff and the deceased lived together in a common-law marriage like relationship for 21 years in a house owned by Rose. At the time of cohabitation, Rose was divorced and the deceased was separated. Rose had one child from a previous relationship.
At the time of the deceased death, Rose was retired and owned a house worth $1,240,000.
The deceased and his mother jointly owned a condominium and term deposits of some $69,000.
The defendants were the deceased sister and brother, nieces and nephews.
In generate 2007, one month prior to his death, Rose and the deceased made handwritten changes to the deceased will and had roses some type of the new will. The new will appointed rose as executor, made special bequests to the church and cancer foundation and gave the residue of the estate to Rose.
The new will was signed but not witnessed.
The new will had markings Rose said were made by him after the deceased died and not by the deceased to indicate she did not agree with parts of the will.
Rose asked a Notary Public to transfer the bank accounts into joint names.
The Notary Public attended the hospital to speak with the deceased, but did not prepare a new will as she said there was no spontaneous response from the deceased to requests to prepare a new will.
Rose brought court action to vary the will as he said the original will did not make adequate provision for his maintenance and support.
The action was allowed on the basis of the deceased had neither illegal nor moral obligation to the defendants, where she had both to Rose.
Rose’s net worth in relation to the deceased was not a factor. The variation of the will was adequate just and equitable to Rose and entirely appropriate in all the circumstances.
The court ordered that Rose receive 70% of the net value of the estate with the residue to be divided between the church and the other defendants.
THE LAW
The basis for bringing a claim to vary a will, is found in s. 2 of the Wills Variation Act, R.S.B.C. 1996, c. 490 (the “Act”):
2. 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.
[37] The plaintiff comes within the definition of “spouse” found in the Act:
“Spouse” means a person who
(a) is married to another person, or
(b) is living and cohabitating with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabitated in that relationship for a period of at least 2 years.
[38] Counsel for the parties are on common ground that the test for whether a testator has made adequate provision for the maintenance and support of a spouse is the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. In Tataryn, the Court found that two sets of societal norms must be addressed:
(1) legal obligations which the law would impose upon the testator during his or her lifetime; and
(2) moral obligations, which are society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.
[39] At p. 821 of her reasons, McLachlin J. (as she then was) explained that together these societal norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.
[40] The Court also recognized the importance of protecting testamentary autonomy. At pp. 823-4 McLachlin J. held, as follows:
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.
[41] However, counsel are not on common ground about whether the recent decision in Picketts v. Hall (Estate), 2009 BCCA 329, 95 B.C.L.R. (4th) 83, has changed the law, or whether the outcome applies to the facts in the case at bar.
[42] In Picketts,the Court squarely 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.
[43] In that case, 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.
[44] 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 awarded Ms. Picketts $5,500,000, which was an amount close to one-third of the value of the estate, the amount she would have received under the provisions of the Estate Administration Act, R.S.B.C., 1996, c. 122 (the “EAA”).
[45] 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…”
