Varying A Will BC Lawyer- Long Marriage Like Relationships

Trevor Todd and Jackson Todd have  over sixty combined years  as British Columbia estate litigation lawyers including extensive  experience in wills variation claims, aka varying a will.

Lemire v Von Hollen 2023 BCSC 1348 is a good example of a wills variation claim involving a 31 year marriage like relationship, and the intervention of family law principles being increasingly utilized in wills variation actions involving a matrimonial matter.

The plaintiff was 76 years of age and was left $10,000 in his partners will, with her leaving the home that she owned evenly between her three adult children. His income was approximately $24,000 per year from a pension. He had vacated the matrimonial home and moved into an uninsulated trailer not meant for all year round use on a friend’s property.
The value of the estate was approximately $550,000 and the plaintiff had approximately $100,000 of his own.

They lived in the home owned by the deceased for most of their relationship and he cared for her for the last few years of her life while she was in poor health. The court varied the will to give him $270,000, being one half of the sale proceeds of the home.

Legal Analysis

Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 at 823–824, is the leading authority on whether to vary a will, and to what extent, by balancing testamentary autonomy and the testator’s legal and moral obligations.

For this situation, the key principles from Tataryn are:

i. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable.
ii. The court should only intervene if the testator has chosen an option that falls below his or her obligations measured by legal and moral norms.
iii. The testator’s freedom to dispose of his/her property is not to be interfered with lightly and only in so far as the statute requires.

The deceased’s legal obligations are to be assessed based on the maintenance and property obligations she would have had under the FLA if she and the plaintiff had separated just before her death.

Her moral obligations are typically to be assessed based on society’s reasonable expectations of what a judicious person would do in the circumstances.

Under s. 81 Family Law act (FLA ) at separation, the plaintiff was presumptively entitled to a one-half undivided interest in the parties’ family property, regardless of their respective uses or contributions.

However under s. 85,the matrimonial home was not “family property” because the deceased acquired it before their relationship commenced.

What is family property, however, is its increase in value between the start of their relationship and the date of the hypothetical separation.

The court held that the entire value should be treated as family property under FLA s. 96(b) because of the long duration of their relationship and the plaintiff’s direct contribution to its maintenance and improvement.

The court awarded him 35% of the value of the home for his legal claims and a further 15% pf the home for his moral claims, totalling 50% of the net sale proceeds of the home.
The court reasoned that the sum of about $370,000 in total assets should put the plaintiff in a modest yet reasonable financial position for housing himself in the future, while respecting the deceased’s wishes to leave a substantial gift to her three children.

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