Skip to content

Wills Variation and Second Long Marriages

Wills Variation and Second Long Marriages

Anderson v Coles 2016 BCSC 13 involves the approach by the court when dealing with a wills variation action between a surviving spouse of a 20 year second marriage and the interests of competing children born of the first marriage.

The court essentially divided the matrimonial home, being the largest family asset 50-50, and gave the surviving spouse an additional bequest of $90,000 to cover the deceased’s notional spousal support and moral obligation.

The parties married at age 62, being two years after the death of the testator’s first wife of 40 years.

They lived together in the testator’s home for 20 years until his hospitalization and then  death in December 2012.

Six months prior to his death, the testator commenced divorce proceedings.

He provided in his will that the plaintiff could remain in the house for her life and receive income from residue of the estate on the condition that she remained unmarried and following her death or remarriage, the estate would then be divided among the testator’s adult children.

The court found that the will did not make adequate just and equitable provision for the plaintiff given the length of marriage and the plaintiffs notional entitlement to half the family assets and spousal support of $90,000.

Legal obligation

[38] Considering the considerable length of the marriage in this case, following two years of cohabitation, and Mrs. Anderson’s contributions during that marriage to the cleaning and preparation for sale of two previous homes, and her assistance in the beautification of the Celista property as well as her $7,000.00 financial contribution to the landscaping at 7th Avenue, I am not persuaded that a notional equal division of family assets would have been unfair to Mr. Anderson. The plaintiff does not claim an equal division would be unfair to her, although of course she argued that the investment assets should be included. In short, I would notionally find Mrs. Anderson to be legally entitled to one half of $362,702.85 in respect of the division of family assets.

Notional spousal support

[39] The plaintiff argues that in the event of a divorce prior to Mr. Anderson’s death, she would have been entitled to spousal support on both a compensatory and a non-compensatory basis. She submits that she suffered an economic disadvantage from the marriage itself by retiring prematurely from a job which paid her approximately $36,000 per year, in order to marry Mr. Anderson and share his life in retirement. She also argues that she has suffered an economic disadvantage from the end of the marriage in that she lost the monthly amount that Mr. Anderson was giving her for expenses and lost the ability to share expenses with him.

[40] The defendants argue that no spousal support would be payable because both parties are beyond the point of being employable and would be in similar positions financially. The case of Glanville v. Glanville, [1998] B.C.J. No. 2960 was cited, where no support was payable on those findings. The distinction here is that given the notional property division I have made, the parties would not be in similar positions financially. The income difference would be $18,848 annually, using the 2007 to 2011 averages.

[41] On the notional spousal support issue, I find entitlement and reference to the Spousal Support Advisory Guidelines would provide a mid-point of $6,926.64 annually. It is, of course, useful in the notional exercise to quantify a lump sum, which in this case I would have assessed at $30,000.

[42] Adding the notional value of spousal support to the property value results in a notional legal claim of $211,351.

Moral obligations of the deceased

[43] The Tataryn case recognized that the determination of moral duties is an uncertain business because there are no clear legal standards by which to judge moral duties. However, the court ranked Mrs. Tataryn’s moral claim as one of “a high order on the facts of this case”, and of two grown and independent sons, the court said “The moral claims of the sons cannot be put very high. There is no evidence that either contributed much to the estate.”

[44] The facts in the Tataryn case are very different from the present case because the Tataryn marriage was one of 43 years and there was no issue of competing moral duties to a spouse and children of a previous marriage. That issue was, however, dealt with in Picketts v. Hall, 2009 BCCA 329, cited by the plaintiff for a number of propositions, despite the very obvious distinction that Picketts involved an estate worth $18,000,000.

[45] The plaintiff in Picketts was a common-law spouse of 21 years standing with very modest personal means at the time their relationship started and at the time of Mr. Hall’s death. Mr. Hall’s will left her their matrimonial home condominium, $2,000 per month for life, and three months use of a Hawaiian condominium. The balance of the estate went to two independent adult sons. The trial judge varied the will on a maintenance based approach to provide for $175,000 per year maintenance, a lump sum to renovate the condo and to set aside a fund for her potential nursing care. The Court of Appeal varied the will further to provide for a lump sum of $5 million, plus the family home, the personal and household effects and an amount in lieu of the time in the Hawaiian condo.

[46] The plaintiff relies on portions of the following paragraphs from Picketts:

[62] It seems to me that it is also not a viable option for the court to approve a disposition that substantially prefers the moral claims of adult independent children to those of a long-term, caring and dedicated spouse.

[63] In assessing the substantial moral obligation of the testator toward his spouse in this case (in addition to the substantial legal obligation), I take into account the following:

(1) the absence of a legal obligation of Mr. Hall to either of his sons;

(2) the length of the marital relationship between Mr. Hall and Ms. Picketts – 21 years;

(3) the agreement of Ms. Picketts to give up her career thereby depriving her of the opportunity to accumulate an estate of her own other than through modest inheritances from her father and her brother;

(4) the necessity for Ms. Picketts to dip into her limited savings to supplement the living expenses Mr. Hall had agreed to provide;

(5) the lengthy period of loving and effective care Ms. Picketts provided to her spouse during his decline;

(6) the promise Mr. Hall made that he would take care of Ms. Picketts as though she were his wife;

(7) the size and liquidity of the estate.

[64] I do not see Mr. Hall’s promise mentioned in item (6) as being limited to the provision of maintenance. The promise has to be considered in the context in which it was made. It was given upon Mr. Hall reneging on an accepted marriage proposal that he had announced socially and which he had confirmed with a ring. I have no doubt that the friends who were witness to both promises would have expected the latter to have been kept by a bequest of capital from his estate. Although the residual promise is not actionable per se, I see it as a significant factor in consideration of the moral obligation toward Ms. Picketts that arose in this case.

[65] Ms. Picketts is entitled to administer her own financial affairs without being dependant on the estate. She is also entitled to a measure of testamentary autonomy of her own so that she can pass her own estate to whomever she wishes.

[66] In all the circumstances of this case, it is my opinion that it is adequate, just and equitable for Ms. Picketts to receive from the estate a lump sum payment of $5M plus the family home, the personal and household effects, and the settled amount for the Hawaii condominium. This variation of the will would properly address Mr. Hall’s legal obligation to Ms. Picketts, and his moral obligations to her and to his two sons, without interfering with his testamentary autonomy more than the Act requires.

Categories

Related Posts