Do You Live in a Common Law Marriage or Not?

This video is about whether or not you live in a common law relationship. As you know, many couples have for some time now lived in common law relationships without the sanctity of a marriage certificate. For many of those years, they were legally unprotected but in recent years, that has changed. Now, generally speaking, if a party—if parties, I should say, lived together for two years, they’re generally considered in British Columbia for most of our statutes to be a common law couple. Thus, they have claims under the Wills Variation Act. They can inherit on an intestacy and they have claims under statutes such as the Family Compensation Act with respect to wrongful deaths.

There are many criteria as to whether a couple lives in a common law relationship because just as many possibilities of various relationships exist today as one could possibly imagine. So the courts will look at such things as whether you in fact even live under the same roof or do you hold yourself up to the community at large as a married couple, whether you share expenses, whether you share assets and just what type of lifestyle you have. But none of them themselves are necessarily conclusive. This is an evolving area of law. Many people have come out of the closet in recent years and have talked about long time relationships which no one knew about. This area will continue to grow and typically the rights of common law spouses will be increasingly protected.

Understanding the Wills Variation Act in British Columbia

A tribute to Wills Variation Act that we have here in British Columbia, Canada. We’ve had this act for approximately 90 years and we obtained it from New Zealand. It allows certain types of classes of people to contest a will if they have been inadequately provided for. It allows spouses, either legal spouses or common law spouses or same sex couples who have either legally married or lived in a marriage-like relationship for two years to contest a will and it also allows children, whether they be adopted children or natural children or illegitimate children but not stepchildren to also contest a will if they also have been inadequately provided for. The article basically gives several examples of extreme cases where a great injustice would have occurred but not for the Wills Variation Act.

The Basics of the Wills Variation Act

This video is about the basics of the Wills Variation Act in British Columbia, Canada. The Wills Variation Act only applies to this province so people from elsewhere must realize that we can only contest wills in this province where the assets are in this province. In any event, this is a detailed look at the statute and some of the requirements to comply with it and some of the problems that we run into in pursuing the many, many claims of disinherited.com that we have pertaining to this statute.

The Wills Variation Act allows children of the deceased and spouses of the deceased to contest a will if they have been inadequately provided for. The action must be commenced within six months of the grant of probate or the person would be out of time to do so. So people should consult disinherited.com for legal advice as soon as possible either before a death or immediately after death to get legal advice as to what claims, if any, they may have if they feel they have been inadequately provided for. The article and video also deal with various ways that can be used to circumvent the Wills Variation Act, and those are some of the problems that we have in trying to recoup inheritances for people who have been disinherited. Thank you very much for watching.

Mr. Attorney – Don’t Change the Wills Variation Act

The Wills Variation Act was written in approximately 2007 after the government of British Columbia the year prior announced that they intended to make slipping changes to wills and succession legislation in British Columbia. The overriding change was to change the Wills Variation Act provision so that adult independent children could no longer contest the will in British Columbia if they were inadequately provided for. The overriding reasoning for this change was that it would now bring British Columbia into more accord with the law of the rest of Canada.

My wife Judith Milliken and I led the fight against these proposed changes. I travel to various bar meetings. We wrote letters, and Judith in particular wrote this article and mailed it to the attorney general and republished it. It is a compelling story as to why the Wills Variation Act should not have been changed and I’m pleased to say that at the end of the day, we won. The government of British Columbia backed down and are not changing that provision of the Wills Variation Act.

Release of Claims and Different Claim

Release of Claims and Different Claim

Bykerk v Kappalka Estate 2017 BCSC 655 discussed a previous Release of Claims signed by the parties to a second court action under the Wills Variation act (Section 60 WESA) and found that the Release was not binding to prevent the latter claim. The court found that there was no res judicata or issue estoppel  present.

A father had sued a daughter and her spouse for the alleged removal of chattels from his farm. The daughter and her spouse counter claimed for unpaid wages.

After the  father died, the daughter brought an action against  her father’s estate and its sole beneficiary for relief for father’s failure to made adequate provision for daughter in will. The estate and beneficiary brought an application for  an order dismissing action based on the signed release of  the prior action, but the application for dismissal was dismissed and the Wills Variation claim was allowed to proceed.

The Court reason that the potential claim under the wills variation claim could not have arisen against estate until father died leaving a will, so release was not bar to a claim under section 60 of WESA.

For the same reason, the doctrines of issue estoppel and cause of action estoppel did not bar claim under S. 60 WESA, nor could the  consent dismissal order for the prior action  bar the subsequent  action.

The signed Release of Claims  was a contract that was  not ambiguous.

That first action was resolved by a Release of Claims that stated in part:

KNOW ALL MEN BY THESE PRESENTS that in consideration of the total payment by or on behalf of BERNARD KAPALKA and BERNIES LTD. (collectively the “Releasees”), of the sum of $125,344.89 plus 50% of accrued interest plus the sum of $25,000.00 as a contribution to costs and disbursements and the interest of Bernard Kapalka in 2950 Sallenback Road and other good and valuable consideration, the receipt of which is hereby acknowledged, BERNADINE BYKERK and WILLIAM BYKERK (the “Releasors”), DOE_ [sic] HEREBY REMISE, RELEASE AND FOREVER DISCHARGE the Releasees, their heirs, executors, administrators, successors and assigns of and from any and all manner of actions, causes of action, suits, debts, contracts, claims, demands and damages of any nature or kind whatsoever, which as against the Releasees, their heirs, executors, administrators, successors and assigns the Releasors and their heirs, executors, administrators and assigns now have or at any time hereafter can, shall or may have for or by reason of or arising out of or relating to the issues which are the subject of an action brought by the Releasees in the Supreme Court, Vernon Registry, Action No. 43038 (the “Action”) and a Counterclaim by the Releasors in the same action.

 

 

 

Forfeiture Clauses in Wills

A forfeiture clause is typically a clause that the testator puts in the will to try and make it much more difficult, if not impossible, for someone to contest the will. Typically, it would be a clause that it says, “If my wife ever remarries, then she’s not to inherit,” or something along those lines. Suffice to say, for the purposes of this video, if a clause purports to prevent someone contesting the will on the basis of the Wills Variation Act, that is, the will did not provide adequately for either a child or a spouse of the deceased, then that forfeiture clause will be of no forcing effect.

On the other hand, a properly drawn forfeiture clause other than the Wills Variation Act, can be effective in preventing certain types of court actions but it’s a very difficult area for a lay person to understand. Please feel free to contact disinherited.com if you see such a clause in a will.

Wills Variation: 84 Year Old Second Spouse With Dementia

Wills Variation: 84 Year Old Second Spouse With Dementia

Philp v.  Philp Estate 2017 BCSC 625 in a wills variation claim awarded an 84 year old second spouse with dementia $300,ooo from an estate of $660,000 after a 35 year marriage.

The widower was a retired doctor who had contributed substantial sums of his money to his spouses horses breeding hobby farm throughout their marriage. He had approximately $600,000 of his own assets at the time of his wife’s death.

The plaintiff was severely demented and was living in a care facility at a cost of $7000 per month.

His wife had left him a life estate in her hobby farm that she had been given after her divorce from her first husband.

The court held that the wife had satisfied her legal obligation to her husband as per the leading case of Tataryn v Tataryn 1994 SCR 807, but she had failed to satisfy her moral obligation to provide for his maintenance and awarded him $300,000.

His claim was opposed by her 5 children from a first marriage.

The Moral Obligation

[56]        Summarizing the decision in Tataryn, Ballance J. made the following comments in Dunsdon v. Dunsdon, 2012 BCSC 1274 (CanLII) at para. 133:

[133]   All legal and moral claims should be satisfied where the magnitude of the estate permits. In cases where complete satisfaction of all claims is not possible, the competing claims are to be prioritized. Claims that would have been recognized as legal obligations during a testator’s lifetime should generally take precedence over moral claims:  Tataryn, at 823. The court must also weigh the competing moral claims and rank them according to their strength. While claims of independent adult children may be more tenuous than those of a spouse or dependent child, where the size of the estate permits, some provision should be made for them unless the circumstances negate such an obligation:  Tataryn, at 822 – 823.

[57]        In balancing the conflicting claims, the Court in Tataryn noted one should take into account the important changes consequent upon the death of the will-maker. As there is no longer a need to provide for the will-maker, the reasonable expectations may differ following a death than in a separation:  at 823.

[58]        The relevant time for determining whether the will-maker has made adequate provision for a spouse or child is at the date of his or her death — 2013 in this case.

[59]        The court may consider the circumstances of the plaintiff, including any reasonably foreseeable changes in the circumstances, as at the date of death, when determining whether adequate provision has been made.

[90]        Turning to the issue of her moral obligations, I note the comment in Bridger v. Bridger Estate, 2006 BCCA 230 (CanLII) at para. 20:

[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. …

[91]        As set out in Eckford v. Vanderwood, 2014 BCCA 261 (CanLII) at para. 56, Dr. Philp’s deteriorating health, i.e. dementia, is not relevant to whether Mrs. Philp made adequate provision for him in her will; rather, only those circumstances existing or reasonably foreseeable at the time of the death of the will-maker are relevant. Evidence of cognitive decline “in or about the fall of 2014” was noticed by Ms. Isaak in her affidavit. This, however, was over a year after Mrs. Philp’s death, and therefore I find his condition was not reasonably foreseeable.

[92]        Kish noted at para. 60, the “claims of adult children do not and should not overshadow a testator’s moral duty to a spouse”, especially where the relationship is long. I agree with Saugestad at para. 123, that it is particularly difficult to assess cases where the deceased and surviving spouse have independent adult children from their first marriages.

[93]        Kish also noted at para. 61, however, that as set out in Tataryn, “testator autonomy is one of the two interests ‘protected’ by the WVA.” In this case the defendants argue that testator autonomy reflects Mrs. Philp’s clear attachment to the farm and her wish that it should devolve to her children.

Renewal of Wills Variation Claim Not Served In Time

Renewal of Wills Variation Claim Not Served In Time

Rodgers v Rodgers Estate 2017 BCSC 518 dealt with an application for a  renewal  court proceedings in a wills variation claim under S 61 WESA that states in 61 ( B) that the proceeding must be served on the executor of the will no later than 30 days after the expiry of the 180 days after the representation grant ( probate) has been issued.

The plaintiff also claimed other relief that was improperly pleaded and 30 days was granted to the plaintiff to bring on an application to amend the pleadings.

The Court in Rodgers stated with respect to the renewal of an action to effect service under s 61 WESA:

22      The court has no jurisdiction to hear the wills variation action if it is not commenced within 180 days from the date the representation grant is issued in British Columbia. The court does have discretion to grant leave to extend the time for service under s. 61(1)(b).

The deadline for service is no later than 30 days after the expiry of the 180 day period referred to in s. 61(1)(a).

23      Counsel for the executor equates the extension of the time for service of a wills variation notice of civil claim to an application for a renewal of a writ. This comparison makes logical sense to me given that, in both scenarios the notice of civil claim or writ expires if it is not served within the proscribed time period. 

24      When hearing an application for renewal of a writ the authorities rely on the test set out in Bearhead v. Moorhouse, (1977) 3 B.C.L.R. 81 (B.C.S.C.) aff’d (1978) 5 B.C.L.R. 380 (CA) (B.C.C.A.):

1. Was the application brought promptly?

2. Did the defendant have notice of the claim from sources other than the writ?

3. Has the defendant suffered prejudice?

4. Was the failure to serve the writ attributable to actions of the defendant? and

5. Was the plaintiff or solicitor at fault?

25      In Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582, the British Columbia Court of Appeal said that it is inappropriate to have an in-depth review of the merits of the case on a renewal application but that the plaintiff is required to demonstrate that the pleadings disclose a cause of action.

If a defendant can make out a case that the action has no hope of success and is bound to fail, then the interest of justice support refusing application on those grounds.

The burden is on the defendant to prove that it is plain and obvious that the action has no merit and is bound to fail.

The Court granted an additional 30 days to serve the court process on the executor.

Anti-Ademption Under S 48 WESA

Anti-Ademption Under S 48 WESA

Forbes v Millard Estate 2017 BCSC 361 discusses and gives effect to S. 48 WESA , known as the anti-ademption provision, when property is disposed of by a nominee such as a power of attorney prior to death that under common law the bequest would have failed.

In McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435, 17 E.T.R. (3d) 36 (Ont. C.A.) [McDougald Estate], the Ontario Court of Appeal explained the concept of ademption: ” [1] Wills often contain bequests, which are directions that specific items of property are to be given to named recipients upon the testator’s death.  Sometimes the specified item cannot be found among the testator’s assets at the time of death.  This can happen because the item is lost, destroyed, sold or given away before the testator dies.  At common law, in such a situation, the bequest is held to have adeemed and the gift fails.  If there are proceeds from the disposition of the item of property, the proceeds fall into residue and are distributed accordingly.  The proceeds are not given to the named beneficiary.”

Section 48 WESA was enacted to deal with ademption and applies to a will, whenever it was executed, if the will maker dies on or after March 31, 2014 when WESA came into effect.

S. 48 WESA states:

48 (1) In this section, “proceeds” means the gross proceeds at the time of disposition, and includes

(a) non-monetary consideration, and

(b) in the case of a gift, the fair market value of the gift.

(2) If property that is the subject of a gift in a will is disposed of by a nominee, the beneficiary of the gift is entitled to receive from the will-maker’s estate an amount equivalent to the proceeds of the gift as if the will had contained a specific gift to the beneficiary of that amount.

(3) Subsection (2) does not apply if

(a) the disposition is made to carry out instructions given by the will-maker at a time when the will-maker was legally capable of giving instructions, or

(b) a contrary intention appears in the will.

THE FACTS:

The deceased executed a will in September 2000 where she left her daughter “any property which I may own and be using as a home at the date of my death”.
The deceased became mentally incompetent and five years later, her attorneys appointed under an enduring power of attorney sold her only property for $185,000″
The deceased died In February 2015.
Accordingly, the deceased did not own property at the time of her death, and that common-law such a bequest would have adeemed since it no longer existed.
The petitioner successfully argued that because the property was sold by a nominee, namely an attorney under a power of attorney, S 48 ( 2) of WESA applied and that her daughter  should accordingly  receive the sale proceeds of the property, just as if the will had contained a specific gift of the proceeds of the sale.
The court also relied on S.  186, of WESA stating that the transitional provisions of WESA contained in Section 4 applied to a will, whenever executed, if the will maker dies on or after the date of March 31, 2014 which was the case.
The court concluded that S 48 is not retrospective in its general nature and that it did not operate retrospectively in this particular case.
Moreover, even if section 48 is retrospective in nature it does not interfere with vested rights. There were no vested rights in this fact pattern because the respondent’s rights were only vested on the death of the deceased.
The deceased had expressed clear intentions in her will as to the reasons that she wished her daughter  to receive the bequest of the property, and it was only because she was incapable that the attorneys sold the property after she went into a rest home.
To fail to give effect to the anti-ademption provision in such circumstances would in the courts view inappropriately frustrate the deceased’s clear intentions.

Vancouver Estate lawyer and Contesting Wills under Wills Variance: The Estranged Child

Wills Variance and the Estranged Child

Trevor Todd , a Vancouver estate litigation lawyer has contested wills under  wills variance proceedings for 50 years.

 

J.R.v J.D.M. 2016 BCSC 2265 discusses in great detail the law and related facts of the case in a wills variance case brought by the  estranged child of the deceased.

No explanation was left by the deceased for the disinheritance other than the notaries notes that he had not seen his daughter for over ten years.

The daughter’s evidence that she had been sexually and emotionally abused by her father, together with his lack of financial contribution to her education and general welfare was accepted by the court.
As is often the case in estrangement cases that I have dealt with, the child left home at an early age (  15) . When this occurs it is  my experience that  it is done for valid reasons.
Any attempt by her in subsequent years to make amends with her father was rejected by him. The court accepted her evidence that there had been nothing positive or healthy in her relationship with her father and that she reasonably believed that her father had no genuine interest in making amends are pursuing any reconciliation.
Generally speaking in my experience, when children leave home at an early age and deliberately have little or no contact with either or both parents, there is usually a valid reason that amounts to the  fault on behalf of the parents to have caused the estrangement.
The court somewhat recognize such behavior and are receptive to the notion that the failure of a parent to financially contribute to a child support during his or her minority is a factor in assessing his or her moral claim for a variation of a parents will when the child has been disinherited.
The court found that any telephone calls between the daughter and the father were distressing and demeaning to the daughter. She was not invited to his second wedding but did attend his funeral.
The court found as a fact that it was the father’s mistreatment of his daughter and his voluntary abdication of his parental obligations that cause the fracture of the father daughter relationship. As such, the onus for repairing the relationship and seeking any form of reconciliation with his daughter rested squarely with the father and his moral duty to her was enhanced as a result of his blameworthy conduct.

THE  LAW

[98]        When faced with a long period of estrangement as in this case, the court will  inquire into the role played by the testator. If the estrangement is largely the fault of the testator, it will likely not negate a testator’s moral duty to an adult child. McBride, at para. 132; Gray v. Nantel, 2002 BCCA 94 at paras. 17-21. The Court’s summary at para. 132 of McBride is of particular relevance to this case:

“In the early development of the caselaw, a long period of separation, abandonment or estrangement between a child and testator was frequently, though not invariably, taken to militate against finding a moral duty to an adult child. The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children: Gray v. Gray Estate, 2002 BCCA 94, 98 B.C.L.R. (3d) 389,”

Doucette v. Clarke, 2007 BCSC 1021, 35 E.T.R. (3d) 98 [Doucette]; Tomlyn v.Kennedy, 2008 BCSC 331, 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53, 21 E.T.R. (3d) 285; P.S.G. v G.G. Estate, 2005 BCSC 1855; Ryan.

[123]     The comments of Donald J.A. in Gray in addressing the moral claim of an adult child in a WVA claim are apposite in this case:

“I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claims to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.”