Deceased Plaintiff Met On Holidays Found to Be Common Law Spouse

The Plaintiff was born in Philippines.

1) was the plaintiff a common law spouse?

2) if so, what was her wills variation action worth out of a $600,000 estate?

In June 2005, the plaintiff was on vacation in Australia when she met the testator.

She and he  agreed that the plaintiff would apply to come to Canada and that the testator would sponsor her as his common-law wife.

In July 2006, the plaintiff moved in with the  testator until her visitor’s visa expired .

In July 2007, the  plaintiff came back to Canada and returned to live with the testator.

On November 7, 2008, the testator died of a heart attack, leaving a  will, but made no provision for the plaintiff.

His estate was $600,000.

The  Plaintiff brought an application for a share in the testator’s estate under the Wills Variation act.

Her Application was granted and she  was entitled to $100,000 from the  testator’s estate on the basis that the  Testator owed a legal duty to plaintiff.

The  Court found that the Plaintiff and the testator were living as spouses at time testator passed away, follwoing the BCCA case of Gostlin v Kergin (1986) 3 BCLR (2d) 264 that is the leadidng case in BC on the issue of common law marriages.

The  Plaintiff would have had right to claim for maintenance and share of property had parties separated.

The matter would have been examined on the basis that there was a valid legal obligation to consider.

The Court followed the two chestnuts of Tataryn and Clucas, as follows:

The governing authority with respect to such applications is found in the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. There the Court provided comprehensive direction with respect to the approach to be taken to the application of the Act. A succinct statement of the general principles that will ground the application is set out in the final submissions of the defendants:

a.         The Wills Variation Act is an attempt to balance the protection of the interests of
children and spouses of the testator on the one hand with testamentary autonomy on the
other, (pages 11-12)

b.          Need, although a factor in this balance, is not a requirement for Wills Variation
relief, (page 16, 2nd para)

c.          A Wills Variation analysis requires a determination, firstly of whether there is a
“legal duty” which the testator has towards his wife or children. After assessment of the
legal duties, the court will review the “moral duties” of the testator towards his wife or
children, (pages 18-21)

d.         If the testator chose an option within the range of what is “adequate, just and
equitable”, the Will will not be disturbed. It will be interfered with only in so far as the
statute requires, (page 21)

[80]    A further very helpful discussion of the issue, including recognition of other relevant

authorities, is found in the decision of Satanove J. in Clucas v. Clucas Estate (1999), 25 E.T.R.


[12]     Many cases have been decided under the Wills Variation Act. The considerations governing the court’s decisions have evolved over time and there is a fairly comprehensive set of competing principles to which effect must be given. I have endeavoured to summarize these as follows:

  1. The main aim of the Act is the adequate, just and equitable provision for the spouses and children of testators. (Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807)
  2. The other interest protected by the Act is testamentary autonomy. 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 insofar as the statute requires. {Tataryn, supra)
  3. The test of what is “adequate and proper maintenance and support” as referred to in s. 2 of the Act is an objective test. The fact that the testator was of the view that he or she adequately and properly provided for the disinherited beneficiary is not relevant if an objective analysis indicates that the testator was not acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards  Walker v. McDermott, [1931] S.C.R. 94; Price v. Lypchuk Estate (1987), 11 B.C.LR. (2d) 371 (C.A.); Dalzielv. Bradford etal. (1985), 62 B.C.LR. 215 (B.C.S.C.))
  1. The words “adequate” and “proper” as used in s. 2 can mean two different things depending on the size of the estate. A small gift may be adequate, but not proper if the estate is large. {Price v. Lypchuk Estate, supra)
  2. Firstly, the court must consider any legal obligations of the testatrix to her spouse or children and secondly, the moral obligation to her spouse or children. (Tataryn, supta)
  3. The moral claim of independent adult children is more tenuous than the moral claim of spouses or dependent adult children. But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made. (Tataryn, supra)
  4. Examples of circumstances which bring forth a moral duty on the part of a testator to recognize in his Will the claims of adult children are: a disability on the part of an adult child; an assured expectation on the part of an adult child, or an implied expectation on the part of an adult child, arising from the abundance of the estate or from the adult child’s treatment during the testator’s life time; the present financial circumstances of the child; the probable future difficulties of the child; the size of the estate and other legitimate claims. (Dalziel v. Bradford, supra and Price v. Lypchuk, supra)
  5. Circumstances that will negate the moral obligation of a testatrix are “valid and rational” reasons for disinheritance. To constitute “valid and rational” reasons justifying disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance. (Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (B.C.C.A.); Comeau v. Mawer Estate, [1999] B.CJ. 26 (B.C.S.C); and Kelly v. Ba/cer(1996), 15 E.T.R. (2d) 219 (B.C.C.A.))
  6. Although a needs/maintenance test is no longer the sole factor governing such claims, a consideration of needs is still relevant. (Newstead v. Newstead ^996), 11 E.T.R. (2d) 236 (B.C.S.C.))

[81]    The proper approach to the determination of the adequacy of the provisions made by the Testator was explained in Tataryn, at 820-821:

If the phrase “adequate, just and equitable” is viewed in light of current societal norms, much of the uncertainty disappears. Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.

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