BC Lawyer- Varying a Will- Will Variation and Second Marriages

Wills Variation (S 60 WESA) and the Second Spouse

Trevor todd and Jackson Todd have practiced in contested estates for over sixty combined years, including varying wills relating to second marriages.


In Unger v Unger Estate 2017 BCSC 1946 the court considered the legal and moral claims of a long time second spouse against the estate of her late husband who did not provide for her in his will.

The plaintiff Mr. Unger aged 80 was married to the deceased for 32 years. It was a second marriage for both.

The surviving spouse moved into the home of the deceased after the death of her first husband. At the request of the plaintiff the deceased made no claim against her first husband’s estate. She entered the second marriage with Mr. Unger was no assets and did not work outside of the home.

The deceased purchased the matrimonial home in 1981. It was originally held in joint tenancy, but was severed in 1993 after the plaintiff and the deceased briefly separated for a few months. It remained in tenancy in common until his death.

The plaintiff suffered physical and emotional abuse at the hands of the deceased, and at one point the deceased was convicted of assault and placed on probation. During their retirement years the couple lived in the matrimonial home and both of them provided services to maintain and enhance the property

After 2010 the plaintiff suffered a series of health issues including mini strokes.

In 2013 the deceased due to his suffering from dementia was placed in an assisted care facility, and the plaintiff visited him daily and was present when he passed away that same year.

The defendants were the deceased four adult children from his first marriage.

His will left $20,000 each to his two daughters and the residue to be divided amongst all four children.

No provision was made for the plaintiff and the reasons stated in the will was that the deceased had transferred title to her of 50% of the matrimonial home during his lifetime.

The defendants had been financially independent of their father for many years, although one of the daughters was very ill, and lived on minimal government assistance. Another daughter earned a low hourly rate and lived with her husband in a trailer.

The value of the estate, including the matrimonial home was $609,000, not including a $100,000 account of the deceased held jointly with his second daughter.

The court varied the will in favor of the surviving widow, holding that the deceased purported rationale for excluding the plaintiff from the will was not valid.

The court found that the legal and moral obligations owed to the plaintiff or high was from a legal obligation and she was his partner for 34 years, and remained with him despite his abusive conduct towards her. She looked after him to the best of her abilities and remained by his side until his death. As such, she was also owed a moral obligation as well as a legal obligation by the deceased to be provided for.

The court awarded her 30% of the residue of the estate, with the remaining 70% to be equally distributed amongst his four children. She also kept her one half of the house that her late husband transferred to her.

The Law

Legal obligation

The court relied heavily on the applicable family law legislation, the Family Law act that came into force in March 18, 2013.

Under section 81(b) of that act, each spouse is entitled to an undivided half interest in all family property, which includes all property owned by at least one spouse as well as beneficial interests of at least one spouse.

However, excluded from the family properties amongst other things, any property acquired by a spouse before the relationship began, and any property derived from such property or disposition of such property S 85 (1)

The evidence was that the plaintiff did not provide any initial consideration in exchange for being put on title to the matrimonial home previously owned solely by the husband. The evidence supported that Mr. Unger intended to transfer the property to the plaintiff as a gift.

The court held that the transfer of the one half interest in the matrimonial home to the plaintiff was a gift, and satisfied the deceased’s legal obligations to her.

Moral obligation

The court referred to the decision JR v. JDM 2016 BCSC 2265 in setting out the factors to consider in assessing the moral claim in a second marriage

1) the length of the marriage;

2) when and how the testator’s assets were acquired;

3) the contribution of the second spouse;

4) how family assets would be divided under the applicable family legislation upon marriage breakdown;

5) competing obligations with the children from the first marriage;

6) financial circumstances of the spouse;

7) the size of the estate; and

8) the magnitude of assets passing to the spouse outside of the estate, in consequence of other pre death transactions undertaken by the testator

The moral obligation of a testator in the second marriage was considered in the decision Suagestad v Saugestad 2006 BCSC 1839, where the court gave a more limited moral claim of a second wife for the bulk of the testator’s estate was acquired during a first marriage

The decision

The court found that the deceased fail to discharge his legal and moral obligation owed to his wife when he provided with nothing under his will.

The plaintiff was allowed to keep her own one half of the matrimonial home, and was awarded 30% of the residue the estate, with the remaining 70% to be equally divided between the four children.

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