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Wills Variation-Elderly Spouse, Second Long Marriage

The wills variation decision of Boyd v Shears 2018 BCSC 194 is an example of an estate dispute between an 83-year-old surviving spouse of a 34 year second marriage, and the three children born of the deceased from her first marriage.

The estate of the deceased was valued at $1.6 million and she only left her spouse, $20,000 as “he will be receiving one half of my pensions and is able to provide for himself.”

In fact, he did not receive any of her pensions and survived on his own pension of $2000 per month.

The residue the estate was left to the three children equally.

The court varied the will to remove the $20,000 cash bequest and to instead give the surviving spouse, a 40% share in the residue of the estate, with the remaining 60% to be divided between the three adult children.

The Law

The reasons for judgment are quite short.

The court stated that when considering whether a will is made adequate provision for a spouse, the court considers what the spouse would have been entitled to in a notional separation immediately to the testator’s death. That notional separation defines the minimum accepted level of what is adequate, just and equitable. Ciamiello v James 2016 BCSC 1699 at paras.70-71.

The court noted that the property was acquired by the deceased about six years before her marriage to the plaintiff, but they lived together there for more than 30 years until her death.
In a notional separation, the Family Law act would give the plaintiff a claim to one half of the property by which the property value increased during their relationship.

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