Varying a Will BC Lawyer- Wills Variation Long Common Law Relationship

Trevor Todd and Jackson Todd have handled contested estates for over sixty combined years, including varying wills in favour of long term common law spouses.


The BC Court of Appeal in Picketts v Hall 2009 BCCA 329 significantly overturned the trial judge’s decision relating to a 21 year long commonlaw marriage.

The deceased was a wealthy man who left an estate of more than $18 million.

While the parties never married, the male partner reneged on a promise to marry the plaintiff , but told her that he would provide for her as if she were his lawful wife.

The wife cared for the husband in his declining last 3 years of life.

The will and provided that the surviving wife would receive the couples condominium residence, $2000 per month, and the use of an Hawaiian vacation property, and a further $75,000 from any eventual sale proceeds from that condominium.

The residue of the estate was left to the deceased’s two sons.

The trial judge ordered that the will be varied to provide the plaintiff with $175,000 per year, plus some other amounts for the rest of her life.

The plaintiff had only approximately $240,000 of her own assets.

The appeal court substituted an order of a lump sum of $5 million to the surviving wife, in addition to the condominium and certain other assets.

In its reasoning the court found that it was relevant that if the husband had died intestate, the plaintiff would have received one third of the entire estate.

That was because the definition of common-law spouse in the Estate Administration act was amended to include a person who has lived and cohabits with another person in a marriage like relationship, including a marriage like relationship between 2 persons of the same gender, for a period of at least 2 years immediately before the other persons death.

The court found that the definition of spouse was essentially the same under the Wills Variation act, and that both acts had been amended with respect to the definition of spouse at approximately the same time.

The court listed a number of factors in favor of the plaintiffs claim that the testator breached his moral, and legal, obligations to provide for her:

  1. the absence of the legal obligation of the deceased to either of his sons;
  2. the length of the couples marital relationship;
  3. the fact that the plaintiff had given up her career and was thereby deprived of the opportunity to accumulate in the estate of her own;
  4. the necessity for the plaintiff to dip into her limited savings to supplement the living expenses that her husband had agreed to provide;
  5. the lengthy period of loving an effective care she provided to him during his decline;
  6. his promise to care for her as though she were his wife;
  7. the size and liquidity of the estate applauds this decision by the Court of Appeal and notes that is the first decision of this Court to substantially recognize and uphold the moral and legal obligations owed by one common-law spouse to the surviving spouse applaud this decision by the Court of Appeal and notes that is the 1st decision of our Court of Appeal to substantially recognize and uphold both b the moral and legal obligations the moral and legal obligations bo the

it would appear that a common-law spouse might still receive somewhat less than a legally married spouse in a wills variation claim, but this decision brought a common-law and legal marriage claims much closer in terms of awards.

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