The issue of the effect of a marriage/cohabitation agreement in a wills variation action was discussed in Brown v Terins 2015 BCSC 775.

The parties lived in a marriage like relationship for 14 years at the time of the deceased’s death.

It was a later in life relationship and each had independent children from earlier relationships.

Ms. Brown moved into Mr. Terin’s home that he had acquired from his parents and where he had lived since 1969.

One year after their cohabitation, the parties entered into a written agreement in which they agreed that the respective wills with director estate to their own children.

Four years after the cohabitation agreement was signed, Ms. Brown and facts executed a will that left her estate to her children. Her partner’s last will was executed nine years after the cohabitation agreement was signed, and he left his estate to his children.

Following his death, Ms. Brown sought variation of his will and the court addressed the cohabitation agreement at paragraph 16 and 17.

The court stated that in short, it is necessary to examine the deceased’s legal responsibility and his or her moral obligation in the full context of the facts as they existed or could’ve been reasonably foreseen by the deceased at the date of his or her death in order to determine whether the surviving spouse has been adequately provided for by the deceased.

A cohabitation agreement ought to receive consideration, but even an agreement that is fair, solemn and well considered is unlikely to be a complete answer to a wills variation claim. (There is ample authority to this effect).

Ultimately the will was varied to require a payment of $500,000 to Ms. Brown from the residue of the estate. This amount represented a share in the increase in value of the home during their relationship, as well as some amount to satisfy a moral obligation.

Accordingly, a list of factors that the court may take into consideration when considering the effect of a cohabitation, or marriage agreement are as follows:

The scope of the agreement

• the length of the relationship, including when the agreement was signed
• the fact that the agreement was signed prior to the Family Law act coming into force, such that common-law spouses do not have property division rates
• whether the agreement was fair and made good sense from both spouses perspectives
• whether the spouses each had cogent reasons for entering into the agreement, such as accumulating wealth in prior relationships, and each having children from earlier relationships;
• whether either party had acted consistently with the terms of the agreement
• the extent to which the spouses had direct involvement in the drafting of the agreement
• whether independent legal advice was obtained by both spouses
• whether the surviving spouse had contributed to the deceased’s estate
• whether the surviving spouse was economically independent prior to, during, and /or after the relationship
• whether any party of the deceased’s estate arose from his or hers previous spouse’s efforts
• the extent to which the parties merge their financial affairs
• his or her expectation of inheritance

See also Howard v . Howard Estate (1997) 32 BCLR for a new earlier discussion summarizing various factors that the court will take into consideration when faced with a marriage agreement in a wills variation claim.

In Howard the court declined to vary the will based on unusual facts, such as the later age at which the parties married, the resulting shortness of the marriage, the fact that they did not become an economic unit and enter into with the relationship of mutual benefits and contribution that usually comes with marriage, the fact that her estate was larger than his, and lastly, the fact that having signed the agreement and made their wills, neither can have any expectation that on the death of the others state that an inheritance would be there.