Common Law Spouse Of 30 Years Awarded $150,000 After Only Being Left Dining Room Suite

Griese v. Syvret, 2013 BCSC 1601

The Plaintiff sought to vary the will of his common law spouse of 30 years after he had only been left with a dining room suite in her will.  The testatrix had made a will in 1995 which detailed that her nephew, whom she had raised as her own son, was to receive her one-half interest in the family home, which was her primary asset of an estate worth ~$375,000.  The court took guidance from the Estate Administration Act in coming to their decision to vary the will.

The couple began living together in 1987 after they purchased a property with a hobby farm, which was to become their principal residence.  The plaintiff paid the down payment and they shared in the mortgage payments after deciding to hold the property as tenants in common.  The defendant, the deceased’s nephew, lived on the property with the couple for a number of years.  The deceased raised him as her own after he had been left in an orphanage (his parents were unable to care for him).  Later, he would pay room and board to the deceased and carried out chores on the property. 

Upon her death, the residence was sold.  The plaintiff received his share (1/2) of the proceeds of sale, but felt that the will did not make adequate provision for his maintenance and support.  He brought a claim for a significant portion of the estate arguing that spousal support and unjust enrichment based on his contribution to the property entitled him to priority over the nephew. 


The court awarded the plaintiff a lump sum of $150,000 from the estate and the nephew was to receive the balance. 

In awarding the plaintiff, the court took guidance from the Estate Administration Act in their analysis.  Under the legislation, if the testatrix had died intestate, the nephew would not have been entitled to a share of her estate as he did not qualify (neither her natural child or adopted).  If she had adopted her nephew, the plaintiff would have been entitled to the first $65,000 of the estate and then the remainder would have been shared with the nephew.  Also, had the nephew not been named in the will, he would not hold standing to challenge the will as he was neither a natural nor adopted child. 

The court found that given the length of the relationship, the deceased owed a significant moral obligation to the plaintiff.  The nature of their relationship and the fact that they had cohabited for a great number of years contributed to the court’s decision.

The court reviewed the law and provided a survey of cases from Tataryn to Picketts.

[71]        In deciding whether or not the deceased’s Will made adequate provision for the plaintiff, her long-term spouse, I find certain aspects of the evidence to be of particular note, namely:

o   Apart from the Aldergrove property and the likelihood that the plaintiff provided some additional financial support to Ms. Jacques after she retired and he continued to work, fundamentally they kept their financial affairs separate;

o   In purchasing their only residence together after about seven years of cohabitation, they purchased it as tenants in common as opposed to joint tenants;

o   They both contributed approximately equally to the purchase of the Aldergrove property from their separate financial resources;

o   Neither Ms. Jacques nor the plaintiff made provision for the other in their wills (with the exception of Ms. Jacques leaving the plaintiff the dining room set and her half interest in the Aldergrove property as an alternate beneficiary, if the bequest to the defendant failed);

o    The deceased raised the defendant as her son from within six months of his birth and persevered in doing so after her husband died;

o   The deceased had a close relationship with the plaintiff as her common law husband of 30 years as of the time of her death, and he provided considerable care and comfort to her in the last months of her life;

o   The deceased also had a very close relationship with the defendant who was essentially her only child in all ways except that he was not adopted by her;

o   The plaintiff contributed approximately $80,811 in terms of maintenance and repairs to the Aldergrove property; the deceased contributed  an unrecorded amount likely to be less than $10,000;

o   As the plaintiff has received payment for his half interest in the Aldergrove property he has already reaped the benefit of half of any such expenditures;

o   The plaintiff is not in particular financial need at this time, and given his age is in generally good health and enjoying life; and

o   The defendant is not in financial need as he is an adult person of independent means.

[72]        In the present case when I analyze the legal and moral obligations of the testatrix to the plaintiff in the context of Tataryn and the jurisprudence that follows, I find that she did not make adequate provision for her common law spouse of 30 years. I assess her “uncrystallized” legal obligation to the plaintiff at the time of her death to have been modest spousal support. I note that his retirement income was approximately twice the amount of hers, so in practical terms, had the parties separated, the plaintiff likely would have been required to pay her a very modest amount of spousal support. Their “family assets” under the Family Relations Act, R.S.B.C. 1996, c. 128 would have been divided much as occurred upon her death.

[73]        However, I find that the testatrix’s moral obligation to the plaintiff was significant, given the length of time they had lived together and the positive and supportive nature of their relationship, which included the plaintiff providing her with considerable care and comfort when she was in decline just prior to her death.

[74]        To be balanced against the testatrix’s legal and moral obligations to the plaintiff is the manner in which the parties organized their financial affairs and how they held the Aldergrove property as tenants in common, in relation to which her half interest forms almost her entire estate. These matters speak to the principle of testamentary autonomy.

[75]        Also to be considered is the moral obligation the testatrix had to the defendant. She clearly viewed him in the same way most people would view a child recognized by law. On the other hand he is an independent adult. They clearly had a close and enduring relationship and it is in keeping with contemporary standards, values and expectations, assuming an estate of sufficient size, that the testatrix would leave the defendant a significant portion of her estate. 

[76]        I have considered the cases relied upon by the plaintiff and the defendant. These cases highlight certain considerations such as: the length of the spousal relationship; the circumstances of the surviving spouse; how the parties managed their finances and arranged their affairs; the size of the deceased’s estate and the nature of competing interests in terms of the children of the deceased from a prior marriage or relationship, or health problems with a child.  The cases varied in their awards: a spouse may receive as much as 70 percent of the estate (Rose v. Bloomfield); as little as a portion of life interest in certain assets (Somodi v. Szabados); or a modest share of the estate (10 percent in Morgan v. Pengelly Estate). What is considered to be adequate for a person entitled to challenge a will under the WVA is very case specific.

[77]        Considering the provisions of the WVA, the decided cases and the guidance that may be drawn from the EAA, on the totality of the evidence before me and based on my findings, I am satisfied that the Will should be varied to a significant degree in favour of the plaintiff. In so doing I have considered the amount that the plaintiff contributed to the Aldergrove property upon which he also founds a claim of unjust enrichment. Given my overall view of this case, I do not consider it necessary to separately address that aspect of his claim.

[78]        I further find, pursuant to s. 2 of the WVA, that it is “adequate, just and equitable” that the Will of the deceased be varied such that the plaintiff is entitled to a lump sum payment of $150,000, an amount that represents somewhat less than half the value of the deceased’s estate, and the defendant as the sole named beneficiary is entitled to retain the balance.

IX.      Conclusion and Costs

[79]        In conclusion, I order that the Will of the deceased be varied such that the plaintiff is to receive a lump sum payment of $150,000 from the estate of the deceased and the defendant as the sole named beneficiary is entitled to retain the balance.