Not every province in Canada has legislated an ability to vary a Will, but in B.C. we do have such legislation.
Formerly the Wills Variation Act, the terms of that Act are now part of the new Wills, Estates and Succession Act, proclaimed a year ago. More and more people are coming to know the legislation and, depending on their circumstances, may in future consider such a step.
The legislation allows the spouse (married or common law) and the child (natural or adopted) of a deceased person to seek variation if they feel that they were not left a “adequate, just and equitable” portion of the Estate.
While there may be a temptation to think that such cases are really all about money, and that a person’s wishes, expressed in a Will, should be allowed to stand, as I see it, it’s seldom that straightforward.
Last week, reasons for judgement were released in Tippett v. Tippett Estate. In this case, the deceased died in 2011, and the most recent Will was made about two months before death.
The surviving spouse lived with the deceased in a common law relationship from 1984 through 1989, when they married. They enjoyed an active lifestyle and a good relationship until 2000, when the deceased was diagnosed with ALS.
Though they travelled, continued their work and generally did as much as they could, the inexorable deterioration in health came. In 2009, the deceased had to stop work and soon received disability payments. The relationship suffered, and later in 2009 the couple separated.
Despite that, the spouse and other friends continued to help the deceased with support, cleaning and related services to allow the deceased to keep living at home. The spouse also paid for some services and medications. They never divorced and never had children.
Title to the couple’s home was held in joint tenancy. In June 2011, the deceased arranged a severing of that joint tenancy and the interest then became a Tenancy in Common. The deceased’s half was bequeathed in his Will to various persons.
The Will was made at the same time as the severance of the joint tenancy. The deceased’s half-interest in his home was left to his sisters and charities. The investment account was divided among ten friends.
What the spouse received was a relatively minor portion of the Estate, though the spouse did receive proceeds of a life insurance policy, CPP survivor benefits and the employment pension.
There is evidence in the reasons that the deceased had a change of heart shortly before dying, in favour of the surviving spouse. It was not formally acted on, however.
The value of the Estate was just under $500,000. In Wills Variation cases, the Court tends to first consider what legal duties the deceased has to the spouse. The Court held that, in the circumstances of this Estate, legal obligations were fulfilled.
The Court then turned to the second consideration: what moral duties are owed to the spouse by the deceased. The Court seemed to view that the couple planned for the surviving spouse to receive the home through the (now severed) joint tenancy, although the deceased had changed the title not long before the death.
The Court held that this was a failure of moral duty and awarded the spouse half of the Estate, which comes close to giving the spouse the value of the home.
The judgement, in my opinion, makes sense. The Court sought to honour what appeared to be the couple’s agreement to give the spouse the home, while leaving enough in the Estate to honour the deceased’s wishes that friends who helped the deceased receive gifts as well.
But this case also seems to be an example of “not only being about the money.” Difficult as the circumstances were, the case has an element of correcting mistakes and fairness. In that sense, I believe the Wills Variation legislation is important for many British Columbians, now and to come.
This ad ran in the Richmond Review on March 4, 2015.