There are many cases being litigated now in B.C. with respect to Wills.
Perhaps the most common case is with respect to variation. Our law has for
many years given legal standing to spouses (married and marriage-like) and
children (natural and adopted) of a deceased person, to seek a variation of
their Will. Generally, if the spouse or child is of the view that they are left
an unfair (there are specific legal terms for it) portion of the Estate, they can
pursue their legal remedies.
The law in this area has evolved significantly over the last thirty or so years.
In a case, today, a Court will consider what legal obligations the deceased
owed to the person claiming (for example, a minor is owed support), as well
as what moral obligations the deceased owed to the person (for example,
the deceased might owe a moral obligation to an adult child who was
disinherited under theWill).
Earlier this month, reasons for judgment were released by the B.C. Supreme
Court in a case called Lemire v. Von Hollen. This is a case where a spouse,
who was left a very small gift under theWill, sought a variation of theWill.
The surviving spouse lived with the deceased, in the lower mainland, from
1988 until the deceased died, in 2018.Themain asset of the Estate is a house,
which was sold after the death, for a net amount of just under $540,000.
When the partiesmet, in 1982, the deceased had been divorced and was in a
marriage-like relationship.The spouse was in a marriage like relationship as
well.They ultimately started a relationship in 1988. Each of them had three
(adult) children from their prior relationships.
The spouse lived with the deceased in her house and stopped paying rent not
long after their relationship was established.They shared other expenses but
largely kept their financial assets separate.
They were both working at the start of their relationship.The spouse worked
in the construction industry and the deceased operated a day care. The
deceased retired in 2002.The spouse worked, though not on a full time basis
because he had surgeries to replace shoulders and hips.However, he did care
for the deceased on a full time basis as her health declined, around 2010.
The deceased made a Will in 2007. She bequeathed the sum of $10,000 to
her spouse.The remainder of her Estate was bequeathed to her children in
The spouse was very thorough in caring for the deceased. It was more than
a full time job, as the deceased did not move to a facility. Staying at home
seemed to be what the deceased wanted but it required a lot of work by
the spouse. One of the deceased’s children retired in 2014 to assist with the
caregiving. The deceased started using an oxygen tank around 2010 but in
2014 she needed it constantly.
The deceased gave her retired child Attorney status under a Power of
Attorney, and appointed her representative under a Representation
Agreement, in 2016. That did not change the spouse’s work schedule nor
The deceased entered Hospital not long before she died, in 2018. After the
death, the children told the spouse they would be selling the house. It was
sold about a year after the death.The spouse had to move into a trailer and
lived from his pensions, which were only modest.
The Court rendered a careful, thorough judgment.The childrens’ argument
against a variation was that they did not see the relationship their Mother
had as “marriage-like”.They thought the spouse was a “friend” only.
The Court, however, held that the relationship was marriage-like. The
current law, as recognized by the Court, includes that financial dependence
and sexual relationship are not themselves indicative of a marriage-like
relationship. The Court will in all cases consider a wide variety of factors,
including the relationship as a whole (other factors include shared shelter,
societal activities and perception of the couple by others). The Court
concluded that the relationship was marriage-like and the spouse was
entitled to seek a variation of theWill.
The relationship was a very long one, as mentioned. The Court felt that a
bequest of $10,000 was unfair.The Court awarded an amount based on the
deceased’s legal obligation towards him (as a spouse) and under her moral
obligation also. The Court awarded the spouse one-half of the net sale
proceeds of the house, which amounted to just under $270,000.
It seems surprising that the deceased’s family could think, after a 30 year
relationship, that the spouse was a “friend”. There was ample evidence of a
committed relationship. The Court seemed to feel that the deceased was a
private person with respect to her relationships and did not want to discuss
that aspect of her life. But it did not take away from the
fact of a far too small bequest to a person who did more
for her than she may have expected and was then forced
to leave the house and subsist on an income below the
poverty line. This case was quite rightly decided. The
spouse earned this award of the Court.