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Wills Variation- Provision For Adult Child, With Life Interest to Commonlaw Spouse

will varied common law spouseWill Varied to Small Provision For Adult Child, With Life Interest to Commonlaw Spouse of 4 years, and Gift Over to Son If He Survives Wife

Hall v Roy Hall Estate 2010 BCSC 529 involves a wills variation action between one long estranged son who reconciled 1 1/2 years before his father’s death, another child who remained estranged from his father, and a common-law spouse of four years.

The testator made a will shortly before his death whereby he left the bulk of his estate of approximately $438,000 to his common-law partner of four years.

He left $10,000 and a car to the plaintiff, who was the son who had reconciled the year before.

The court found that the testator failed to make adequate provision for the plaintiff, who was age 60 at trial.

The court gave the plaintiff a $20,000 bequest, with a life estate in the remaining  $418,000 to the common-law spouse,  aged 65, and a gift over to the plaintiff should he survive the common-law spouse.

The court analyzed the two-step process that must occur in a wills variation analysis:

A. The first step is to determine whether adequate provision has been made for the proper maintenance & support of the plaintiff;

B. If the answer to that question is no, then the question on the second step is what provision is adequate, just and equitable in the circumstances of the case.

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