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Wills Variation

Wills variation: Legal and Moral Obligations to Second Spouse

By Candace Cho

The principle issue in the wills variation action in Westman (Guardian ad litem of) v. Westman Estate, 2000 BCSC 236 was whether the testator fulfilled his legal and moral obligations to his second spouse in the provision made for her in his will. In essence, the testator prepared his will to shield the estate from division with his second spouse and her children from a previous marriage. In light of the particular circumstances of the case, the court found this to be unfair and ordered equal division of the testator’s estate.

First, second, and third spouses

During his lifetime, the testator had three spouses. The first and second were formal marriages, while the third was a common-law marriage. A brief chronology is as follows:

  • The first marriage, which ended in divorce in 1968, produced his only natural child, the defendant Peter Erhard.
  • In 1969, after a couple of years of dating, the testator married his second spouse, the plaintiff in this action. The plaintiff had four children with her first husband, who died in 1961. The marriage between the plaintiff and the testator did not produce any children.
  • In May 1985, the plaintiff suffered a stroke which resulted in her mental and physical incapacity and permanent hospitalization. Throughout his life, the testator continued to visit the plaintiff in hospital. As well, he continued to provide for all her financial needs.
  • In August 1988, the testator inherited $600,000 from his mother’s estate.
  • By the early 1990s, the testator was living in a marriage-like relationship with his third spouse.

The impugned will

The testator executed a will dated June 27, 1996 which created a $100,000 fund, the income from which was to be paid to the plaintiff, for her life, with power to encroach; and any balance remaining, on her death, to be paid over to the testator’s son, the defendant Peter Erhard. The rest of the estate ultimately went to Peter. The plaintiff’s children from her first marriage (the testator’s stepchildren) were to receive only their mother’s personalty.

Application to vary the will

The testator died February 9, 1999. After his death, the plaintiff’s children brought a claim on their mother’s behalf to vary the will on the basis that it failed to make adequate provision for her proper maintenance and support. A one-half of the estate was claimed as the adequate, just and equitable provision for her in the circumstances.

Did the testator fulfill his legal and moral obligations to his second spouse?

The starting point are the principles prescribed in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. Wilson J. in Westman summarized the Tataryn framework as follows (footnotes omitted):

[45]     The framework for analysis prescribed by the Supreme Court of Canada, in ordering that variation, involves inquiries into two broad areas. First, it must be recognized that two interests are protected by the Act. Namely, 1. — “the main aim of the Act is adequate, just and equitable provision for the spouses and children of testators.” And, 2. — testamentary autonomy. The Act is a limitation upon, not an elimination of, that autonomy.

[46]     The second area of inquiry is the determination of the referent for the words “adequate, just and equitable”. In a particular case, this inquiry must be guided by considerations of: (1) the testator’s legal responsibilities during life; and, (2) the testator’s moral obligations after death.

[47]     Of legal obligations, the court said the legal obligations, or duties, on the living, are those prescribed in the Divorce Act, family property legislation, and the law of constructive trusts. For the living, maintenance and the provision for basic needs may discharge that duty. Or they may not. What I am directed to be mindful of is that spouses are partners, in the financial and property sense, as well as the connubial sense.

[48]     Of moral duties, the court said it was a matter of balancing conflicting claims against each other. “As to moral claims”, said the court, at paragraph 52, “some may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority.” As Mr. Dunford put it — “The testator’s moral obligations are those found in society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards.”

Will varied to provide equal division of estate with the second spouse

The testator did not fulfill his legal and moral obligations to the widow in his will, thus the application to vary the will was allowed. Wilson J. found that the testator’s legal obligations to the plaintiff were such that she would have been entitled to an equal division in the event that she and the testator had divorced on the day prior to his death; on the particular facts, it was just and equitable for half of his estate to pass to her. Further, with regard to moral obligations, it was society’s expectation that the estate continue to support the incapacitated widow.

Wilson J. rejected the arguments that the legal obligation was lessened by the claimant’s incompetence, and that the deviation from the presumptive equal division should be granted because it would only benefit the plaintiff’s children:

[49]     I do not understand Mr. Dunford to say that Mr. Westman did not have a legal obligation to the plaintiff. What he does say is that this is a case where the maintenance and provision for basic needs, provided in the will, are sufficient to meet the legal obligation. The trust fund will generate sufficient income which, with the plaintiff’s pension revenue, will adequately provide for her day-to-day needs in the Gorge Road Hospital. Mr. Dunford and Ms. Hunter contend that any variation of this will, which transfers capital to the plaintiff, will benefit only the [plaintiff’s] children. It will be a “windfall”, they say. Perhaps. But it may as well be one of the unintended consequences of serial monogamy.

Equal division between spouses is not an automatic entitlement

There is no automatic entitlement to a spouse getting half of an estate; that is the presumption set out in the family legislation, but the court can depart from an equal division if such a division would be unfair. In fact, as we discussed in a previous post, in some cases, it may be acceptable to leave a spouse out of a will. Ultimately, what is fair depends on the circumstances.

In the Westman case, there were two material findings of fact that heavily influenced the court’s decision to vary the will to allow for equal division of the estate:

  1. The second spouse’s economic contributions during the relationship; and
  2. The testator’s untrue assurances to his stepdaughter concerning how the estate would be divided.

The material findings are discussed below.

Contributions to family property

The court found that the plaintiff made major economic contributions to the relationship. In the early 1960s when the testator met the plaintiff, he was “not a very successful” real estate salesperson and brought no appreciable assets to the relationship. The plaintiff, on the other hand, brought the bulk of her inheritance from her first husband’s estate into the relationship and also contributed through her employment income to the end of 1968. By 1969, the testator shared in producing income, but he did not contribute assets until he received his inheritance in 1988.

Assuming equal division as the starting point, counsel for the testator argued that the assets should be reapportioned in favour of the testator primarily because a significant portion of the value in the estate was his $600,000 inheritance from his mother. Wilson J. acknowledged that the legislation authorizes a departure from an equal division if such a division would be unfair, but did not find such unfairness in this case:

[55]     […] However, if I am right that the plaintiff contributed her inheritance to the family unit in the early years, then to place the emphasis on Mr. Westman’s inheritance in the later years is tantamount to saying that what was hers was theirs, but what is his is his.

Testator’s untrue assurances to his stepdaughter

In the early 1990s, the plaintiff’s daughter discussed with the testator the propriety of his new common-law relationship and suggested that a divorce from her mother would be appropriate. Mr. Westman balked at her suggestion. The court found that the testator knew that divorce proceedings would expose the assets to division between the plaintiff and himself.

In 1996, when preparing the impugned will, the testator’s solicitor advised him on the exposure he faced to the plaintiff arising out of the Wills Variation Act (now replaced by the Wills, Estates and Succession Act, [SBC 2009], c. 13), as interpreted by the Supreme Court of Canada in Tataryn v. Tataryn Estate. The testator harboured anxieties about his exposure to such a claim by the plaintiff.

In September 1996, after the impugned will had been executed, the testator told his stepdaughter that he had drawn a new will leaving half of his estate to his son Peter, and the other half of his estate to the plaintiff and her children. He knew that if he told his estranged wife’s daughter that the estate had been evenly divided between the families, she would not continue to press the issue of divorce.

The plaintiff’s daughter relied upon her stepfather’s assurances, and took no further steps to investigate her mother’s position, believing that her mother was fully protected. The court found that the testator’s dishonesty took it out of the court’s power to make an informed inquiry into the notion of “unfair” when he dissuaded his stepdaughter from pursuing her mother’s interests. Since the testator took it out of this court’s power to hear and determine, in a timely fashion, the issue of unfairness in relation to equal division of family property, he was not permitted to say that it should be resolved in his favour at the later date.

Take home points on the legal and moral obligations to a second spouse in a wills variation action

In a wills variation action, the determination of what is adequate, just and equitable provision for a second spouse requires analysis of the legal and moral obligations of the testator, per the framework set out by the Supreme Court of Canada in the leading decision on the matter, Tataryn v. Tataryn Estate.

Where provision for a second spouse is at issue, the testator’s legal obligations (i.e., the obligations which the law would impose during his or her lifetime if the question of provision for the claimant arose) are found in the Divorce Act, family property legislation and the law of constructive trusts. The legislation presumes equal division but authorizes a departure from equal division if such a division would be unfair.

In the Westman case, equal division of the estate with the second spouse was found to be fair. The facts material to this finding were the testator’s dishonesty about his plans for dividing the estate and the second spouse’s economic contributions to the family over the course of their 14 year relationship.