In estate litigation, the Court is often asked to determine
whether or not a plaintiff was the "spouse" of the
deceased. We often refer to this as the "threshold
question", because being recognized as a "spouse"
typically allows the plaintiff a greater claim on the estate.
While the status of a legally married spouse is usually easier to
determine, WESA and other estate related law includes in the
definition of "spouse" someone who has lived with the
deceased in a "marriage-like relationship" for at least
"Marriage-like relationships" come in many different
forms. Our Courts are clear that there is no set one set of
criteria to be met, but rather, many possible indicators. The
bottom line is that each couple's spousal status must be
reviewed in the context of their own unique facts.
In a recent decision, the British Columbia Supreme
Court considered, first, whether the plaintiff, Ms. McFarlane,
was the "spouse" of the deceased, Mr. Goodburn, and
second, if so, whether Mr. Goodburn's will ought to be
Ms. McFarlane and Mr. Goodburn had been family friends for
many years. Following the deaths of their respective spouses, Mr.
Goodburn moved into Ms. McFarlane's home and they began an
intimate relationship. During the course of their eleven-year
relationship, the couple socialized together, vacationed together
and, according to Ms. McFarlane, regarded themselves as husband and
wife despite maintaining separate finances. Mr. Goodburn suffered
from various health conditions and relied on Ms. McFarlane for care
and assistance until his death. In his will, he left nothing to Ms.
McFarlane. Ms. McFarlane argued that the will ought to be varied in
her favour as it failed to make adequate provision for her
To determine whether the will ought to be varied, the Court
first had to consider whether she was Mr. Goodburn's spouse.
The Court answered this question in the affirmative based on the
following objective and subjective factors:
The couple shared a home and a bed;
Ms. McFarlane provided care and support to Mr. Goodburn to the
degree and in the manner of someone who was more than simply a
In their social interactions with friends and family, the
couple would have appeared to function as a unit; and
Each was likely committed to life-long financial and moral
support of the other.
The Court further explained that for a relationship to be
"conjugal", couples are not required to fit precisely the
traditional marital model. The Court therefore found that Ms.
McFarlane was in fact a spouse, and ordered that the will be varied
to provide for her.
Thank you to Alexandra Andrisoi, articled student, for her
assistance in preparing this post.
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guide to the subject matter. Specialist advice should be sought
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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