Over the last number of decades, families and relationships have
become increasingly more complicated, often making estate matters
more complex and litigious. For example, when a person claims to be
the spouse of a deceased, and the family, or other beneficiaries,
either do not recognize them as a spouse or were not aware of a
relationship at all, frequently litigation will be the result.
Litigation will often take the form of a wills variation claim by
the person alleging to be a spouse.
Under s.60 of the Wills, Estates and Succession Act
(WESA), children and spouses of the deceased can bring a claim
for variation if proper maintenance and adequate provision was not
made for them in the will of a deceased. The first hurdle for these
parties is to establish themselves as a "spouse",
entitling them to make such a claim. Under WESA, and the
former Wills Variation Act, a spouse is defined as someone
who was married to the deceased or had been living with the
deceased in a "marriage-like relationship" and lived in
that relationship for at least 2 years. How the law determines what
is "marriage-like" therefore becomes quite important.
On November 30, 2015 the BC Court of Appeal released their
decision in Weber v. Leclerc1. The Court
considered the factors that define a "marriage-like"
relationship to determine a spouse under the Family Law
Act. This Act uses the same definition as WESA and so
the discussion is relevant to circumstances that fall under either
The Court came to the conclusion that, despite separate finances
and the female partner's disavowal of any intention to be a
spouse, the couple lived and acted as if they were in a marriage.
Even though the couple kept their finances separate and money
loaned to one spouse was always repaid, the Court found that
keeping finances separate was not in itself indicative of something
other than a spousal relationship. The Court then considered
arguments regarding the intentions of the parties but ultimately
found that the quality of the relationship was much more indicative
of a spousal relationship than the statements made by the parties
regarding their subjective intentions. The couple cohabitated for a
number of years, were in a romantic relationship and the intention,
though not to marry, appeared to be to remain together for an
indefinite amount of time. Socially, they acted as a couple and
raised their children in a family unit with family photographs
displayed in the home. All these factors led the Court to conclude
that the parties were in a marriage-like relationship, regardless
of the alleged intentions otherwise.
The importance of this decision is how the Court of Appeal
evaluates a relationship when questioning whether one is a spouse
or not. The Court reaffirms decisions from the late 90s and early
2000s that started shifting away from a traditional understanding
of marriage. Factors that used to be highly indicative of
marriage-like relationships, like joint finances, may no longer
play such a pronounced role. Relationships have changed and a
formulaic approach is no longer practicable. Moving forward, the
Courts will continue to rely upon the individual facts of each case
as families continue to become more and more unique.
Article written with assistance from Elina Hartshorne, Articled Student
1. Weber v. Leclerc, 2015 BCCA 492.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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