She was held to be a spouse, but when it came to the Will …

Late this summer, reasons for judgement were released in the case McFarlane v. Sawatzky. It was a Wills Variation case where the surviving person had to prove she was a “spouse,” so that she would be eligible to contest the Will under B.C. law.

Well, the couple knew each other for many years, and started their relationship in 2000. They lived together and “functioned” as a couple. The deceased died in 2011.

The Court held that the surviving person was indeed a “spouse.” In her effort to vary the Will, however, the Court found several deficiencies in the evidence.

The “Trial” was a summary Trial, using only affidavit evidence. There was no open Court testimony. As with any Wills Variation claim, the Plaintiff has to show that the deceased owed them legal obligations or, if unsuccessful, moral obligations.

The Plaintiff’s evidence seemed weak, and did not show a legal obligation. The Plaintiff was able to show a moral obligation based on the care she provided as the deceased’s health deteriorated.

In 2010, the Department of Veterans’ Affairs gave the deceased a disability award of $262,000. He told the Plaintiff several times that he would give her some of the money, but did not, and in fact disinherited the Plaintiff. The Court awarded her $90,000, about one-third of the disability award.

Since this case was conducted with affidavits, it was imperative that the affidavits provide adequate information. In part, the Court appeared to have said that there wasn’t sufficient information to make out what may have been a stronger case.

This ad ran in the Richmond Review on October 31, 2014.