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Wills Variation: Spouse Trumps Children

Wills Variation: Spouse Trumps Children

In wills variation litigation, it is quite common for spouses, infant children, and adult children, to have conflicting claims against the other, but the claim of a spouse will trump the claims of adult children..

Generally speaking, claims based on legal obligations, such as those owed by a testator to spouses and minor children, will take precedence over moral obligations that might be owed to adult independent children.

Where the size of the estate permits, the court may satisfy moral obligations after firstly satisfying the legal obligations.

Waldman v Blumes 2009 BCSC 1012 is a good example of how the courts might deal with such conflicting claims .

The facts are a bit unique given the promises and decisions made by the testator and his spouse during their lifetimes.

The testator died at age 91 , widowing his 2nd wife and leaving four children, two of them ages 17 & 15 from the 2nd marriage.

The widow, a lawyer, was 34 years younger than her husband and had made significant career and family decisions based on their joint decision that the deceased would leave her his entire estate.

The estate was approximately $1.2 million.

The spouse had in addition also received the family home prior to his death.

The will did not provide for his two adult children.

The court found that as a result of the reliance on the mutual plans made and the lifestyle adopted, the testator owed his widow a high legal obligation.

She had two children at his urging and worked only part time at his urging, as given their vast age difference, he wanted his family around him.

The court awarded $75,000 to each of two adult children , based primarily on the fact that neither daughter had received any inheritance upon the death of their mother.

The Court left it to counsel for the minor children to try and negoitate how much of the remaining $1,050,000 belonged to each child and how much belonged to their mother.

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