Wills Variation: Elderly Common Law Spouse

Wills Variation: Elderly Common Law Spouse

Mars v Blais 2011 BCSC 1714 involved a 91 year old widow who brought a wills variation action ( now S. 60 WESA) against the estate of her late common law partner of 9 years. The wills variation  action was prior to WESA but would likely have been decided the same after WESA came into effect.

They value of the estate was approximately $1.5 million.

The deceased left a will, leaving the plaintiff a life estate in the matrimonial home, plus $50,000. He left the residue of the estate to his 62-year-old son who had no income and owned no property.

The 91-year-old plaintiff was economically independent with their own pension income plus rental from the property, and the judge found that she would not need to use her own capital in order to live.

All of the assets of the deceased’s estate were accumulated by the deceased prior to meeting the plaintiff. They lived a modest lifestyle and did not share or intermingle their assets.

The court awarded the plaintiff the sum of $200,000 and the life estate in the matrimonial home on the same terms of the will, which provided for the estate to pay for the upkeep and taxes of the  home and property, which was in need of substantial repair.


[61]           There are two interests protected by the WVA. The first is to ensure adequate, just and equitable provision for the testator’s spouse and children and the second is to honour his testamentary autonomy (Tataryn v. Tataryn 1994 51 (SCC), [1994] 2 S.C.R. 807; Hall v. Korejwo, 2011 BCCA 355 , 2011 BCCA 355 at para. 35).

[62]           The first consideration is the testator’s legal obligations to a spouse and children and the second is the moral obligations to spouses and children with legal obligations taking precedence over moral obligations. (Hall at para. 35).

[63]           In determining the legal obligation the first consideration is the testator’s legal obligations to support his spouse or children (Picketts v. Hall (Estate), 2009 BCCA 329 , 2009 BCCA 329 at para. 50). “The legal aspect of [the plaintiff’s] claim under the [WVA] is limited to the claim she would have had for spousal support” (Picketts at para. 58).

[64]           None of the assets in the estate came into being through any joint effort involving Ms. Mars. There was no evidence tendered about Ms. Mars’ life expectancy or evidence of her ongoing financial needs for support. The general statement made by her that she does not need more money to meet her needs satisfies me that she is able to live comfortably, on her current income, at the level they shared before Mr. Bain’s death.

[65]           In view of the incomes of the parties throughout their time together and the modest life style enjoyed by them, Mr. Bain’s Will was more than adequate to meet his legal obligations to provide spousal support for Ms. Mars as contemplated by Low J.A. in Picketts.

[66]           The assessment of Mr. Bain’s support obligations is the same whether based on the compensatory or non-compensatory approach. (Morgan v. Pengelly Estate 2011 BCSC 1114 , 2011 BCSC 1114 at para 205).

[67]           The second question is whether Mr. Bain’s Will has satisfied his moral obligations to family members that could reasonably be expected of a judicious person in like circumstances. Claims based on legal obligations will generally take precedence over those based on moral duties, and what is adequate, just and equitable in the circumstances is judged by contemporary standards. See Hall at para. 35.

[68]           Any variation of Mr. Bain’s will should be limited to the extent required to achieve the objectives of the WVA. (Tataryn at 823-4;Crerar v. Crerar 1998 5375 (BC CA), (1998) 61, B.C.L.R. (3rd) 55.

[69]           The Estate Administration Act, R.S.B.C. 1996, c. 122, provides some indication of contemporary standards but does not directly affect the considerations that govern the applications under the WVA (Hall at paras. 44 and 46).

[70]           In analyzing Mr. Bain’s moral obligation I am informed by the comments by McLachlan J. in Tataryn at 822-23 in assessing a testator’s moral obligation:

For further guidance in determining what is “adequate, just and equitable”, the court should next turn to the testator’s moral duties toward spouse and children.  It is to the determination of these moral duties that the concerns about uncertainty are usually addressed.  There being no clear legal standard by which to judge moral duties, these obligations are admittedly more susceptible of being viewed differently by different people.  Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought.  For example, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits.  Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow.  While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made: Brauer v. Hilton 1979 746 (BC CA), (1979), 15 B.C.L.R. 116 (C.A.);  Cowan v. Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.), aff’d (1990), 37 E.T.R. 308 (B.C.C.A.); Nulty v. Nulty Estate 1989 244 (BC CA), (1989), 41 B.C.L.R. (2d) 343 (C.A.).  See also Price v. Lypchuk Estate, supra, and Bell v. Roy Estate1993 1262 (BC CA), (1993), 75 B.C.L.R. (2d) 213 (C.A.) for cases where the moral duty was seen to be negated.

[71]           In Bridger v. Bridger Estate, 2006 BCCA 230 , 2006 BCCA 230 McKenzie J.A. discussed the tension between competing moral claims:

[20]      … Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults. While, as McLachlin J. observes in Tataryn, there may be a number of options for dividing assets by a testator which are adequate, just and equitable, I do not think they include a disposition that entirely prefers the moral claims of adult independent children to those of a loyal spouse who provided care for the testator over years of debilitating decline.

[72]           Low J.A. in Picketts described several helpful factors in assessing the moral obligations of a testator. He examined:

        the absence of a legal obligation to the testator’s sons;

        the length of the marital relationship – in this case nine years;

        the agreement of the spouse to give up a career depriving her of the opportunity to accumulate in the estate of her own;

        the necessity of the spouse to dip into her savings to supplement living expenses the testator had agreed to provide;

        the lengthy period of loving and effective care provided by the spouse to the testator during his decline;

        a promise made by the testator to take care of the spouse as though she were his wife; and

        the size and liquidity of the estate.

[73]           In this case, there appears to be a moral obligation owed by Mr. Bain to his son. Daniel Bain is 62 years of age and appears to be vocationally and economically vulnerable. He has no income and no property (except for the Scottish property) and has been dependent on the estate for his living expenses for at least eight months. He is not looking for work but he seems to have little demonstrated ability to find or keep work. There was little or no evidence to explain Daniel’s circumstances and I am left to reach a conclusion without an abundance of information.

[74]           In the present case the parties began cohabitating quite late in life and remained together for nine years. They did not engage in a sharing of assets or significant economic contributions to the estate other than sharing the Odlum Street house. Both of Mr. Bain’s properties and his savings were acquired before they joined their households. It appeared to me that Ms. Mars did not have an expectation of sharing Mr. Bain’s properties.

[75]           Ms. Mars argued that Mr. Bain’s efforts to contact his lawyer about changes to his will and their plans to marry demonstrated an intention to share assets or make a different provision for the distribution of his estate after death. The evidence of what he intended is too speculative to be a factor in the assessment of his moral obligation.

[76]           Ms. Mars is economically self-sufficient with income from her own pension and the veteran’s pension provided by Mr. Bain. With her right to receive income from the Odlum Street house coupled with the $50,000 bequest she will not likely need to use her own funds to provide for her support.

[77]           Ms. Mars and Mr. Bain enjoyed a very modest but fulfilling relationship during their nine years together. Ms. Mars did provide care and support for Mr. Bain during his decline and until his death. Unlike Ms. Pickett’s role, the evidence of Ms. Mars’ care of Mr. Bain was quite limited.

[78]           The size of Mr. Bain’s estate is considerable. The liquidity in the estate is less certain; the evidence suggested that there could be significant capital gains taxes to be paid by the estate triggered by Mr. Bain’s death.

[79]           Ms. Mars has expressed a deep desire to continue to reside in the Odlum Street house. While counsel suggested that, in light of her age, she may not be able to remain in the house, there was no evidence that she is, or will be, incapable of living there.

[80]           Low J.A. commented that the spouse in Picketts was entitled to administer her own financial affairs and was entitled to a measure of testamentary autonomy of her own so that she could pass her own estate to whomever she wished (para. 65). I take Mr. Justice Low’s comment to suggest that the analysis of a moral obligation ought not to be influenced by the fact that the assets received after a variation of the will may not be used by the beneficiary before her death. The fact that Ms. Mars may give away or bequeath all of her assets to another person should not affect her entitlement to receive that which Mr. Bain was morally obliged to give her under the Will.

[81]           Mr. Bain left the bulk of the capital of his estate to Daniel. Daniel is, in my view, in serious need of support, although he professed an ability to support himself, the evidence suggests otherwise. The fact he has been using estate funds to support himself is one indication of his current need.

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