Pre-Nuptial Agreement Held to Be Bar to Wife’s Wills Variation Claim

Pre-Nuptial Agreement

Martinson v Anniko 2009 BCSC 14 is illustrative of where a marriage agreement  is ultimately  “fair”, it will be held to bar a spouse’s Wills Variation claim brought after the death of a spouse.  The Court was also critical of the steps taken by the surviving spouse in secretly severing the joint tenancy home, that she would ahve inherited had she not severed

The Plaintiff stood to inherit the entire matrimonial home but severed joint tenancy and gifted other monies received from the Testator to her daughters. These were her unilateral decisions and the court found there was no inequity on the part of the Testator.  


 The Testator and the Plaintiff marriedfor the second time  later in life.

During the period beginning immediately prior to their marriage and until the Testator’s death, the two signed four agreements regarding their respective property:

  1. a pre-nuptial agreement in 1985 stipulating that the property each brought to the marriage would remain separate;
  2. an amendment signed in 1986 stipulating that the 1985 agreement would have the force of law under s. 48 of the Family Relations Act (“FRA”), and would govern the ownership of respective assets in the event of divorce, death, or separation. The amendment also provided that the agreement as amended released both from any claim made by the other under either the Estate Administration Act (“EAA”) or the Wills Variation Act (“WVA”);
  3. a second amendment to the original 1985 agreement signed in 1988 stating that the couple’s residence in Victoria, BC was purchased with the sole assets of the Testator and was held in joint tenancy as a matrimonial home. The amendment also stated that the Plaintiff held her interest in the home in trust for the Testator, who was the sole beneficial owner. Finally, it provided that if the Testator predeceased the Plaintiff, the Plaintiff would hold the entire property in trust and would sell the property and pay the proceeds of sale to the Testator’s family;
  4. a third and final amendment to the original 1985 agreement made in 1995 that terminated the trust arrangement created in the second amendment and declared that the Plaintiff and the Testator held the matrimonial home as joint tenants.

The Testator made three Wills between 1996 and 2005, each providing something for the Plaintiff and her children from a prior marriage in recognition of s. 2 of the WVA.

The Testator’s final Will left nothing for the Plaintiff or her children from a prior marriage, but did provide a $50,000 bequest to the Plaintiff’s granddaughter.

The entire residue of the Testator’s estate went to his nephew, the Defendant.

The Testator noted in the Will that the Plaintiff would be provided with the matrimonial home, some jointly held investments, and would also receive some inter vivos gifts.

However, the Testator was unaware that the Plaintiff had already severed the joint tenancy on the matrimonial home and registered her half interest jointly in her and her children’s names. The Testator died and the Will, leaving the entire residue of his estate to his nephew.

The Plaintiff applied to vary the will but her claim was  dismissed.


The Court held that the Testator fulfilled his legal and moral obligations to the Plaintiff.

Marital agreements have the force of law under Section 65 of the Family Relations Act


The act also allowed  for the variation of marriage agreements where they were inequitable, but the court found no such inequity in the present case.

The successive Wills executed by the Testator between 1996 and 2005 made decreasing provision for the Plaintiff, with justifications citing the increase of value of the marital home, inter vivos gifts made by the Testator, and the growth in jointly-held investments.

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