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Inheritance Law Review

Insightful and useful commentary on inheritance, disinheritance, and wills and estate litigation

The Armchair Rule

By Mark Norton on Posted in Uncategorized

Sometimes the language in a Will is unclear or ambiguous and requires interpretation.  Madam Justice Dardi’s decision in Re: Theimer Estate2012 BCSC 629 does a great job in looking at the many principles that Courts use in trying to interpret ambiguous or unclear provisions of a Will.  Most importantly, Madame Justice Dardi concisely summaries the “armchair” rule of Will interpretation amongst other principles:

Under the Armchair rule the Court tries to put itself in the armchair of the testator so they can see the Will and understand its wording through the testator's eyes.

  • In construing a Will, the objective of the court is to ascertain the intention of the testator as expressed in his or her Will when it is read as a whole in light of any properly admissible extrinsic evidence;
  • The testator’s intention is to be gathered from the Will as a whole and not soley from those provisions which have given rise to the controversy;
  • The subjective approach to interpreting Wills, wherein the objective is to ascertain the actual meaning the testator ascribed to, the words he or she used in the Will is the modern approach to Will interpretation;
  • Courts have adopted the “armchair rule” which requires that the court to put itself in the position of the testator at the point in time when he or she made the Will (not at the time of death), and from that vantage point construe the language in the Will in light of the surrounding facts and circumstances known to the testator at that time;
  • The main source of evidence should come from the “four corners” of the Will (meaning you simply look at the writing in the Will), but the armchair rule entitles the court to look to extrinsic evidence to identify the surrounding circumstances known to the testator at the time the Will was made which might reasonably be expected to influence the testator in the disposition of his or her property.  For example, the court can look at the occupation of the testator, the state of his property and the general relationship of the testator to his or her immediate family and other relatives.
  • The modern judicial approach to interpreting a Will is to admit all the evidence regarding the surrounding circumstances at the start of the hearing and then to construe the Will in the light of those surrounding circumstances.

As it can be seen, the real key for anyone looking to have a Will interpreted is putting before the Court a clear picture of who the testator was and what made him or her tick.  It is through this understanding that Courts will be able to best interpret what a testator meant by the words used in his or her Will.

Can I Bury Someone in my Backyard (Legally)?

By Mark Norton on Posted in Uncategorized

I have yet to have a client ask me if they can bury someone in their backyard.  When that day comes I will reply with a cautious “well why do you ask?”.  As long as the person asking doesn’t look and act like Mark David Chapman and the answer is somewhat legitimate I would continue on the conversation and tell this person about 82 year old Elsie Piquet from Chester, Connecticut.

The recently widowed Mrs. Piquet buried her husband of 22 years behind their farmhouse with the help of a licensed funeral director.  Unfortunately, Mrs. Piquet and her funeral director failed to get the proper clearances (and zoning permits) to allow for the husband’s home burial.  The Connecticut courts ruled against Mrs. Piquet thus thwarting the widow’s goal to have herself and her husband laid to rest, side by side, on their 8 acre farm property.  Mrs. Piquet will have to have her husband’s body removed from the property and sent to a proper cemetary.

A picture of the Piquet farm in Chester, Conn

In British Columbia the Cremation, Interment and Funeral Services Act deals with the disposition of human remains and cremated remains.  The Act requires that our loved ones be laid to rest in government approved locations.   These burial spots must also (generally) be properly zoned by local government.  For any particular plot of land to be approved as a burial location, a complex and technical application procedure must be followed.  This application procedure is set out in s.24 of the Act and requires such steps as obtaining a geotechnical engineering report.  A successful application will result in the granting of a certificate of public interest allowing for burial on the land.  This certificate must be registered on title to the land so that there are no surprises for future purchasers of the property when they put in that new addition!

While it is possible for a  Mrs. Piquet to bury their husband in their backyard in British Columbia, the application process to obtain a certificate of public interest is complex and expensive.  There are also many hurdles to jump through under the Act when you, or your future estate, want to sell that property.

In the near future I will continue to blog about the Cremation, Interment and Funeral Services Act as it covers such important issues as “who has the say on burial method when someone dies” and “what sort of deference do burial wishes in wills get”.

 

 

Can I Have that Dirty Rotten Good for Nothing Executor Removed?

By Mark Norton on Posted in Uncategorized

It is not uncommon in contested estate litigation that someone will come up with the idea that they want to remove the Executor.  Sometimes this is a well rationed strategy with supporting evidence.  Other times this is the result of a person’s emotions and feeling that all of their estate litigation problems will be solved if only that “rotten brother or sister or (____insert relation____)” were no longer the Executor.

While there is certainly a time and place to seek the removal of an Executor, this can be a difficult task.  To remove an Executor you must prove that it is prejudicial to the estate or the beneficiaries for the Executor to continue to act.  The Testator’s discretion to appoint the Executor of his or her choice will be given significant weight and will not be interfered with in a liberal fashion by Courts.  Just because you don’t like or don’t get along with the Executor, doesn’t mean you have sufficient grounds to remove that Executor.

The Testator’s discretion to appoint the Executor of his or her choice will be given significant weight and will not be interfered with in a liberal fashion by Courts.

In the Court of Appeal decision of Conroy v. Stokes [1952] 4. D.L.R. 124, the court held that to be successful in removing an Executor you have to provide evidence that the Executor acted in a manner that endangered the Estate, or that as Executor, he or she acted dishonestly without proper care or without reasonable fidelity.  Some of the more common reasons for courts removing an Executor are (this is not a complete list):

  1. Dishonesty or fraud;
  2. Conflict of interest
  3. Endangering estate assets;
  4. Bias or extreme hostility between executor and beneficiaries;
  5. Incompetence and/or failure to distribute the estate; and
  6. Failing to pass accounts.

Dishonesty or fraud, endangering estate assets and conflict of interest, if proven, are clear cases where executors should be removed.  The other grounds listed can be more difficult, on their own, to have an Executor removed.  Your chances of removing an Executor increase if multiple reasons for removal exist exist.

I cannot stress it enough that the most important aspect of removing an Executor is ensuring you have proper proof.  A case based on mere speculation will not go very far.  While it can be difficult, no one should be motived by pure emotion in bringing forward an application to remove an Executor; It is a decision that needs to be made wisely and strategically.

If you are a beneficiary or a Co-Executor and feel that an Executor should be removed, you should consult a lawyer experienced in the area of wills and estates.

Your Will as Your Last Practical Joke; The Last Will and Testament of Charles Millar

By Mark Norton on Posted in Legal History

Have you ever thought about peppering your Will with some humour and novel bequeaths?  Charles Millar did.  Charles Vance Millar was a wealthy Canadian lawyer, financier and practical joker.  When Millar died on Halloween day in 1931 he certainly left some tricks and treats in his Will.

Perhaps the most famous provisions in Millar’s Will were the provisions that lead to the Great Stork Derby.  Millar, who was unmarried and who had no children of his own, bequeathed a significant part of his estate to the mother in Toronto who gave birth to the most children in the 10 years after his death.

at the expiration of ten years from my death to give it and its accumulations to the mother who has since my death given birth in Toronto to the greatest number of children as shown by the registrations under the Vital Statistics Act [Ont.]. If one or more mothers have equal highest number of registrations under the said Act to divide the said moneys and accumulations equally between them.  (From the Will of Charles Millar)

 In the 10 years that followed his death, a total of 4 women in Toronto gave birth to 9 children each and all shared equally in Millar’s bounty (they each got about $125,000).  The Great Stork Derby is a very well known estate story and was turned into a made for TV movie starring Megan Follows.

The Great Stork Derby had negative societal consequences as poor families in Toronto had children they could not afford so they could compete in Millar’s “contest”.  Many of these families saw this competition as a way out of poverty.

The estate of Millar was heavily litigated, especially the provisions around the Great Stork Derby which many argued should be struck down for being against public policy.  This issue went to the Supreme Court of Canada which did not strike down the Stork Derby provisions (It should be known that the case made it to the Supreme Court of Canada in 1937 when the stork derby was almost half over).

Millar’s penchant for practical jokes could be seen in his other Will provisions:

  • Millar granted a lifetime tenancy in his vacation property to three men that detested each other;
  • Temperance advocates, including Protestant ministers were bequeathed $700,000 worth of O’Keefe Brewery stock (a Catholic business) if they participated in its management and accepted dividends from the business’ profits; and
  • Staunch anti-gambling advocates were bequeathed Mr. Millar’s shares in the Ontario Jockey Club.

While it is easy to look back at Millar’s Will and its provisions and find them humorous, his Will did cause a significant amount of grief to people.  The expensive and contested litigation, the families that over extended themselves by having too many children and Millar’s extended family were all impacted by Millar’s sense of humour.  The point here is don’t use your will as an instrument of humour.  Save the humour for your funeral directions.

Can a Parent Disinherit a Child because of Sexual Orientation?

By Mark Norton on Posted in Disinheritance Cases, Wills Variation

A parent cannot disinherit an adult child in British Columbia on the basis of their sexual orientation.  As noted by the Courts in this province, a parent’s reasons for disinheritance must be both valid (in the sense of being based on fact) and rational (in the sense there is a logical connection between the reasons and the acts of disinheritance).

Both the cases of Patterson v. Lauritsen (1984) CanLII 353 (BCSC), and Peden v. Penden Estate, 2006 BCSC 1713 (CanLII) examine the issue of disinheritance based on sexual orientation.  It is no surprise that Courts find that disinheritance on the basis of sexual orientation is not valid and rational as no judicious parent would disinherit their child on these grounds nor should our community standards allow it.

In Patterson v. Lauritsen, (1984) CanLII 353 (BCSC), the Plaintiff Mr. Patterson, who had three brothers and sisters, was completly disinherited by his mother.   In the will notes kept by the mother’s lawyers it was noted that the mother was  disinheriting her son because “he is living with a homosexual and she thinks he is a drug addict”.

In his decision, the Honourable Mr. Justice Spencer held that:

…homosexuality in today’s society is not a factor which would justify a judicious parent acting wisely disinheriting a child.

Having found there were no valid and rational reasons for disinheriting the Plaintiff , the Court treated the Plaintiff equally by providing him an equal share of the mother’s estate.

In Peden v. Peden Estate, the Plaintiff, who was gay, was treated differently than his two brothers under his father’s will. The estate, worth $1.7 million dollars, was divided as follows (after certain bequeaths);

  • The Plaintiff’s two brothers each got 1/3 of the estate residue;
  • The Plaintiff received a 1/3 share of the estate residue BUT this was to be held in trust. The Plaintiff was only entitled to the income off that money (not the capital).  The balance of the capital would pass to the other brother’s upon the Plaintiff’s death.

The Honourable Mr. Justice Groves found that this different treatment of the Plaintiff was akin to disinheritance.  While the other brothers received the unencumbered use of significant sums of money, the Plaintiff only received the interest off of those sums which was a very small gift in comparison (as Mr. Justice Groves noted the Plaintiff may only recieve a 4% return on that money).

Mr. Justice Groves found that the reasons for the Plaintiff’s disinheritance was his sexual orientation and that this was clearly not a valid and rational reason for disinheritance.  Such reasons for disinheritance offends community standards:

It seems clear from the evidence of Smith that the real reason for the testator treating the plaintiff differently was the plaintiff’s sexual orientation. There is even pre-Tataryn authority that homosexuality is not a factor in today’s society justifying a judicious parent disinheriting or limiting benefits to his child. (See Pattersonv. Lauritsen 1984 CanLII 353 (BC SC), (1984), 58 B.C.L.R. 182, [1984] 6 W.W.R. 329)

I agree with and endorse the conclusion of Justice D.M. Smith in the decision in Ryan. I find it applicable here, where there is no such “logical connection” or “valid and rational” reasons for an unequal distribution, and where “contemporary standards create a reasonable expectation of children sharing equally in a parent’s estate.” Further, the comment of the Supreme Court of Canada in Tataryn about the Act being interpreted in light of what a “judicious person”, considering community standards, would do in the circumstances, is helpful.

When looking at these cases it is important to note that a testators’ reasons for disinheritance will be examined through today’s community standards.  While a person who passes away may come from less tolerant times they are judged by modern standards on morality.

 

 

Holographic Wills and a Recipe for Chili Sauce

By Mark Norton on Posted in Estate Administration Litigation, Legal History

On the morning of June 8, 1948, Cecil Harris, a Saskatchewan farmer, went out into the field as he did on most mornings.  He told his wife that he was putting in a long day, as he often did, and would not be home until 10:00 pm that night.  Soon after he started working Mr. Harris had an accident with his tractor.  He found himself pinned under its rear wheel.

Mr. Harris was severely injured and remained trapped until after 10:00 pm when his wife went out looking for him.  He was taken to hospital where he died.  It was later discovered that while Mr. Harris was pinned under the tractor he had carved the following into the fender of the tractor:

In case I die in this mess, I leave all to the wife.  Cecil Geo Harris.

The fender, which was removed from the tractor and probated, is a classic example of a holographic will (it is also a very famous example, the tractor fender is on display at the University of Saskatchewan law school)

A photo on Mr. Harris's fender and holographic will which is on display at the University of Saskatchewan.

A holographic will is one that is handwritten and signed by the testator.  They are not usually witnessed by others and, like Mr. Harris’ case, are often made in times of emergency or urgency.

Some other interesting examples of holographic wills include:

On January 19, 1967, German Karl Tausch who sensed he was about to expire in his bedroom wrote “Vse Zene” (All to wife) on his bedroom wall.  This was deemed a valid holographic will and is on record with the Guinness Book of Records as the world’s shortest will.

In 1913 a Philadelphia housewife, named Margaret Nothe, left a holographic will in a cookbook.  Under the recipe “Chili Sauce Without Working”, Mrs. Nothe wrote the following:

4 quarts of ripe tomatoes,

4 small onions,

4 green peppers,

2 teacups of sugar,

2 quarts of cider vinegar,

2 ounces ground allspice,

2 ounces cloves,

2 ounces cinnamon,

12 teaspoons salt,

and for the instructions:

Chop tomatoes, onions and peppers fine, add the rest mixed together and bottle cold.  Measure tomatoes when peeled.  In case I die before my husband I leave everything to him.

Holographic wills are a bad idea as discussed by lawyer Tim Hewson in a recent blog.  While holographic wills are recognized in many jurisdictions as valid wills, they are not recognized in British Columbia (there is a small exception for members of the Canadian Forces while on active service).

In this province a will must adhere to the formal requirements under the Wills Act R.S.B.C. 1996 c.489 which are:

  1. The will is in writing;
  2. The will is signed at its end by the testator;
  3. The testator makes or acknowledges the signature in the presence of two witnesses; and
  4. The witnesses sign their names in the presence of the testator.

So remember, if you are relying on a holographic will as your estate plan, it will not be valid. If you have such a will in this province, the will won’t be worth the paper, or the fender, it is written on.  You might also say a holographic will is a recipe for a disaster (or a delicious chili sauce disaster). Ok, ok, sorry for the puns.

Leaving Money to Trouble: Providing for a Pooch instead of People.

By Mark Norton on Posted in Disinheritance Cases, Legal History, Wills Variation

Leona Helmsley, the famous and wealthy business woman also known as the “Queen of Mean” died on August 20, 2007 at the age of 87.   By some estimates her net wealth at death was $2.5 to $8 billion dollars which was made through various hotels and real estate ventures.

Ms. Helmsley earned the name Queen of Mean because her flamboyant personality and tyrannical behavior.  She alienated friends and family in life and continued to do so in death.  Her Will is evidence of how abusive people use their wills to perpetrate their mean and abusive behavior beyond the grave.

Ms. Helmsley, who did not have any surviving children or a surviving husband, provided for the following in her 14 page will (remember her estate was worth billions!):

  • $15,000,000 bequeath to her brother Alvin Rosenthal;
  • $100,000 bequeath to her chauffer;
  • She left a two-page “mission statement” where, in a first draft, she wanted a charitable trust set up to benefit dogs and “poor people”.  She allegedly later removed “poor people” from the mission statement presumably finding that people were not worth helping (don’t forget, she was the person who famously said “Only the little people pay taxes”).  The vast majority of her estate went to this trust;
  • She left $10,000,000 dollars each to two of her four grand children provided they visited their father’s grave on an annual basis (1/2 in cash and 1/2 in trust).  The grandchildren had to sign a registration book to prove they attended the grave site;
  • She completely disinherited her other two grandchildren for “reasons which are known to them”.  Rumour has it, these two grandchildren were disinherited because they did not name any of their children after their father (this would not be a valid reason for disinheritance in British Columbia).

I have not made any provisions in this Will for my grandson CRAIG PANZIRER or my granddaughter MEEGAN PANZIRER for reasons which are known to them. The Will of Leona Helmsley

Perhaps the most widely publicized aspect of the Will was the $12,000,000 trust fund Ms. Helmsley left behind to care for her 8 year old white Maltese named Trouble.  Other than the charitable trust that was set up for the benefit of other dogs, this was the largest bequest from the Helmsley Will.  While it may seem cute to leave a dog that much money, one must wonder how her grandchildren who received nothing would feel being passed over for the pooch.

Leona Helmsley with Trouble

Of course the Helmsley Estate ended up in Court over the Will.  Eventually, and largely because of capacity issues, Trouble’s trust fund was reduced from $12,000,000 to $2,000,000.  The judge in the case felt that $2,000,000 was enough money for Trouble to live off of.  The other $10,000,000 that was to go to Trouble went to a charity ($4,000,000) and to the disinherited grandchildren ($3,000,000 each).

Trouble passed away in December, 2010 at the ripe old age of 12.  Trouble died leaving lots of money behind which went to a Helmsley charitable foundation.

In British Columbia, under the Wills Variation Act, little to no protection would be provided to a large bequeath made to a dog, cat or other animal at the expense of a spouse or child who ends up being disinherited.  This is especially true if that bequest goes well beyond what is reasonable for the care of that animal and the reasons for disinheritance are not rational or valid.  Pets have no rights under the Will Variation Act other than through the deference that a judge will provide to wishes of the deceased.  That said, a small amount of money left in trust for a dog could be allowed to stand as a reasonable bequeath as long as just, equitable and adequate provision was first made to your spouse and children.  If you want to leave money to a pet, talk to an estate planning expert on how to do this in a fair, reasonable and respectful manner, and in a way that will reduce the chance of estate litigation.

Unwanted Occupants: Executors and the Eviction and Removal of People from Estate Property

By Mark Norton on Posted in Estate Administration Litigation

One problem that executors face in administering an Estate can be determining who is entitled to live in the real property (the family home, vacation properties, cottages etc.) that a testator has left behind.  With the cost of housing and the cost of living in British Columbia continuing to rise, it is not uncommon for family members to move into the property of the deceased, sometimes without legal authority, and refuse to leave (it actually sounds like visiting relatives too…Cousin Eddie are you reading this?).  The incentive to get free accommodations can be significant.  So what does an executor do when this happens!?  How do you remove someone from estate property?

How do you get a Cousin Eddie to leave!?

Tenant or a Squatter?

The first question for an Executor to ask is: “is the person occupying the property as a tenant”?  This is important to determine because if the person is a tenant their eviction from the property must follow the rules and procedures under the Residential Tenancy Act and Regulations (the “RTA”).  Obviously, a family member (or any other person) with a written tenancy agreement will be a tenant for the purpose of the RTA.  However, if there is no written tenancy agreement (which is not uncommon in the informal arrangements between family members) the nature of the living arrangements will be examined to determine if there was some sort of implied rental agreement.  So for example, where a family member is living in a self contained suite (i.e. a granny suite) and was paying the deceased money “under the table” this very well may be an arrangement covered by the RTA.

In contrast with this, however, it must be noted that the RTA specifically excludes “living accommodations in which the tenant shares bathroom or kitchen facilities with the owner of that accommodation” from being considered a tenancy situation.  So if a relative, common law partner or friend was simply sharing a house with the deceased the RTA will not apply and the Estate will have to use the Courts for the eviction.

Trespassers, Squatters and Persons without Lawful Authority Occupying the Property

Those persons who are not considered tenants and otherwise have no right or authority to occupy property, must be removed by obtaining a Court Order.  For example, in situations when a family member (or someone else) moves into estate property without permission after the deceased has died, that person is trespassing; plain and simple.  To remove this person from the property, proper procedure must be followed (no vigilante evictions allowed).  The general first step is to commence an action in the Supreme Court of British Columbia seeking a declaration that the trespasser is occupying the property unlawfully and that the Estate is entitled to possession. At this point the Estate obtains an Order of Possession which must be served on the trespasser to give him/her notice of the requirement to leave.

If the trespasser still does not leave after the Order has been served, a Writ of Possession will be required.  This will give a Sheriff the right to enter the premises and remove the trespasser.  Needless to say this can be a time consuming and costly procedure for something that seems relatively straight forward.

So armed with both the eviction process under the RTA and the court process for obtaining an Order of Possession and Writs of Possession, an Executor has the tools to remove unwanted persons from estate property.  Now if I can just get Cousin Eddie to go stay in a hotel….

Can you be in a “Marriage-Like Relationship” even though you and your partner keep separate homes? You bet you can!

By Mark Norton on Posted in Wills Variation for Spouses

In my last blog I examined how the Courts determine which relationships are common law marriages or “marriage-like relationships” under the Wills Variation Act.  The case of Mazur v. Berg 2009 BCSC 1770 demonstrates how two people in a relationship can maintain separate houses but can still be considered living in a “marriage-like relationship”.

The Facts in MAZUR v. BERG

Victor Fennel died in June, 2008.  He left his entire estate to his biological son an only child Jesse Berg (the Defendant).  Caroline Mazur (the Plaintiff) made a claim under the Wills Variation Act where she claimed she was entitled to an interest in the estate of Mr. Fennell as she was his common law spouse.  She held the position that she had been in a “marriage like relationship” with Mr. Fennel for about six years, and was therefore a spouse under the Act.

Jesse Berg defended the action claiming that his father and Ms. Mazur had a romantic relationship but they did not live together and kept separate houses,thus their relationship was not ”marriage like” as required and defined by the Act (I guess he thought they were more like long term girlfriend and boyfriend).  Mr. Berg felt Ms. Mazur was entitled to nothing.

Ms. Mazur provided the following evidence about her relationship with Mr. Fennel, through her own testimony and the testimony of others (this is not an exhaustive list of the evidence):

  • Ms. Mazur and Mr. Fennel commenced their relationship in September of 2002.
  • Mr. Fennel and Ms. Mazur had houses within three miles of each other on Hornby Island.  The couple would spend most of their time together in one house or the other.
  • Mr. Fennel would be away from Hornby for periods of time working but would always come back to spend time with Ms. Mazur at her house or his.
  • Mr. Fennel would receive mail at Ms. Mazur’s place and Ms. Mazur would receive mail at Mr. Fennel’s place.
  • Ms. Mazur and Mr. Fennel took vacations together and socialized together.  Friends in the community saw them as a couple.
  • Ms. Mazur and Mr. Fennel had an intimate and sexual relationship.  They were physically affectionate with one another, both privately and in public.
  • Ms. Mazur received cards from Mr. Fennel professing his love to her.  They talked about marriage.
  • Mr. Fennel who earned more income, paid some of Ms. Mazur’s bills including property taxes.
  • Mr. Fennel bought a rental property in 2005.  Ms. Mazur worked with Mr. Fennel in cleaning up and fixing the property.  The property was solely in Mr. Fennel’s name.  The couple also shared day-to-day chores like shopping, cleaning, cooking and laundry.
  • Ms. Mazur took care of Mr. Fennel during ill health including the months leading up to his death.

The Court’s Analysis

In looking at Ms. Mazur’s and Mr. Fennel’s relationship as a whole the judge put little weight on the couple’s maintaining of separate residences.  Madame Justice Adair held:

[73] Mr. Fennell and Ms. Mazur also shared their lives together. They celebrated holidays and special events together. They vacationed together. They worked together on their properties and on the Bowser property. They were perceived by members of the community on Hornby to be spouses. […]  Ms. Mazur also looked after and cared for Mr. Fennell during a long period when his health was failing. Although the relationship was not always an easy one, particularly in the last six months of Mr. Fennell’s life, Mr. Fennell and Ms. Ms. Mazur stayed together. […]Certainly, Ms. Mazur by her actions, demonstrated that she was committed to stay with Mr. Fennell in sickness and in health, until death parted them.

The Court’s Decision

The Court found that, despite maintaining separate residences, the couple shared significant amounts of their lives together, so much so that they were in a “marriage like relationship” (Isn’t sharing your life with someone else at the root of marriage like relationships!?).    In the end the judge held that as a spouse, Ms. Mazur was not adequately provided for under the Will and awarded her awarded 55% of Mr. Fennell’s $300,000 estate.

Mazur v. Berg is a great example of how courts will take a holistic view of a relationship in determining if it is marriage like.  No one element will be determinative of a couple’s status as spouses; not even the maintaining of separate residences.

Common Law Spouses under the Wills Variation Act: What is a “marriage-like relationship” anyway?

By Mark Norton on Posted in Wills Variation for Spouses

Rights under the Wills Variation Act (the “Act”) are only available to spouses or children.  A “spouse” can either be a married spouse or a common law spouse (including same-sex spouses).   The Act defines a common law spouse as “a person who is living and cohabiting with another person in a marriage-like relationship…and has lived and cohabited in that relationship for a period of at least 2 years”.

In determining what constitutes a “marriage-like relationship” Courts in British Columbia take a broad view.  This is because the Courts understand that relationships come in all kinds of shapes and sizes.  Mr. Justice Ryan-Froslie in Yakiwchuk v. Oaks, 2003 SKQB 124 (a case often cited in British Columbia) recgonized this:

 [10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and still, in others, one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine.

So, with the vast amount of variation in how couples interact with each other, courts must be flexible in their approach when determining if a relationship is “marriage-like”.  In doing this Courts  look at many different factors including:

  1. Intentions of the Parties – Is there any specific evidence of what the couples themselves consider their relationship to be?
  2. Shelter – what are the living arrangements of the couple?  Do they live under the same roof?
  3. Sex – does the couple have sex?  Are they monogamous?  Do they share the same bed?
  4. Social Activities and Social Perception – do they do things together?  Do they go to parties together?  Do they hold themselves out as a couple at social events?
  5. Economic Support – do they intertwine their finances?  Shared bank accounts?  Is there an expectation that money advanced needs to be paid back?
  6. Children and Family – How do they interact with each other’s family?  Do they take an active step-parent role?  Do they get invited to family events?

The question of whether two people are living in a “marriage-like relationship” is fact driven.  No one factor is fully determinative on the issue of what is and isn’t a “marriage-like” relationship, and it is recognized that these factors may be present in varying degrees.  Further to that, not all the above factors need to be present for the relationship to be “marriage-like”.  For example:

So  be mindful, just because a relationship between two unmarried people is not fully conventional does not mean those two people are not in a “marriage-like” relationship and thus “spouses” under the Wills Variation Act.