Li v Ellison 2014 BCSC 501, is a Vancouver Wills Variation action where the deceased testator did not provide for his common law wife of eight years under his will, and the court varied the will under the Wills Variation act to award her the sum of $155,000, or 2/7 of the value of the estate, which ever was larger.
The deceased died at age 75 and left an estate valued between 480,000 and $600,000 to his two children and three grandchildren but very little to his common-law wife of eight years, namely a small pension .
When the plaintiff met the deceased in 2004, she was a relatively recent immigrant from China. While cohabiting with the deceased she obtained employment qualifications and currently earns about $37,000 per year. She has little in the way of savings, as she supported her family overseas. The deceased earned about$75,000 per year during the latter part of their cohabitation. There is some evidence that the parties intended to marry.
The deceased supported the plaintiff during the relationship. He suffered various health conditions in his later years and the plaintiff cared for him, although she did not leave her employment. The evidence shows they had a loving relationship and the deceased intended to make some provision for her after his death although the documentary and other evidence is unclear as to what that was. The deceased also had loving relationships with his immediate and extended family and it is clear that he intended to make provision for them as well.
Assets have passed outside of the estate, primarily to the deceased’s children and grandchildren, although the plaintiff has benefited from receiving a vehicle, a very small pension, the balance in an account, and has continued living in the condominium which was the matrimonial home. The defendants received approximately $409,000 outside of the estate. The net amount appropriate for distribution in the estate appears to be between approximately $480,000 and $600,000., which was taken into account by the court in reaching the conclusion that the deceased failed to make legal and moral provision for the plaintiff under his will.
The Wills Variation act was applied to vary the will in favour of the common law spouse of 8 years.
The court considered that the bulk of the assets in the estate was brought into the relationship by the deceased, and that the plaintiff was relatively young and not disadvantaged by the relationship. The care that she provided to the testator was taken into account in the award.