Common law wife awarded $155,000 - husband's assets passed outside of will

Li v. Ellison, 2014 BCSC 501

Wendy Li brought an application under the Wills Variation Act as her common law husband had left his entire estate to be distributed between his children and grand-children.  When they met in 2004, he had been divorced for some time and she was a recent immigrant from China.  The couple lived together for many years and had a loving relationship with her caring for him as he suffered from various health conditions leading up to his death. 

The deceased had transferred some of his assets outside of the estate to his children and grand-children and a will had been drafted in 1999.  Ms. Li did receive a vehicle, a small pension, balance of an account, and continued to live in their condo, but the majority of his assets had passed to the children.  She brought an application as she understood that he would make some provision for her after his death.  The net amount for distribution in the estate ranged from $480-600,000. 

Adequate, just and Equitable:

The judge awarded Ms. Li $155,000 or 2/7th of the net value of the estate, whichever was greater, as this would satisfy the significant moral obligation owed to her by the deceased.  This amount took into account the assets that had been transferred before his death, the significant relationship with Ms. Li, and the claims of his family members. 

[8]             The defendants acknowledge that the plaintiff meets the definition of a common law spouse under the WVA.

[9]             The leading case on the interpretation of Section 2 of the Act is that of the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. McLachlin J., as she then was, giving judgment for the Court, held that the first consideration in determining what is “adequate, just and equitable” is the testator’s legal responsibilities during his or her lifetime.

[10]         The second consideration is the Testator’s moral duties toward spouse and children. Clearly there are strong moral obligations to support and maintain a dependent spouse. The situation of independent adult children has another perspective. As noted by the Court in Tataryn at 822-823:

… While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made: Brauer v. Hilton (1979), 15 B.C.L.R. 116 (C.A.); Cowan v. Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.), aff'd (1990), 37 E.T.R. 308 (B.C.C.A.); Nulty v. Nulty Estate (1989), 41 B.C.L.R. (2d) 343 (C.A.). See also Price v. Lypchuk Estate, supra, and Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (C.A.) for cases where the moral duty was seen to be negated.

[11]         Where there are conflicting claims and where the size of the estate permits, all claims should be considered. Where priorities must be considered, legal claims recognized during a testator’s lifetime should generally take precedence over moral claims. The Court in Tataryn makes it clear that there a number of different ways which may be appropriate and produce a disposition which is adequate just and equitable:

… In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. … (at 824)

[12]         As I have said, the parties do not dispute that the will making no provision fails to meet legal and moral norms. That is not surprising as it was made without reference to the deceased’s circumstances over the last eight years of his life.

[13]         The parties have referred the courts to a wide range of cases, providing differing results, all of which are heavily fact dependent. I agree with the submission that the decision of Williams J. in Tenorio v. Redman Estates, 2011 BCSC 1403, citing Clucus v. Clucus Estate, (1999), 25 E.T.R. (2d) 175 (B.C.S.C.), is very helpful in setting out the competing principles at play. There is a very useful discussion of the application of the factors at paragraphs [90] - [102] of the Tenorio decision.

[14]         Counsel referred to the factors referenced in Tenorio. I observe that this was a much longer relationship than that in Tenorio, and significant assets passed outside the estate. That said, virtually all of the estate was accumulated here prior to the relationship, the plaintiff is relatively young, was not disadvantaged by the relationship, and has a career which produces a reasonable income. The legal obligation to the plaintiff is relatively modest, although the moral obligation is significant, I agree that it would not extend to provide an equal division of assets and lifelong support. In my opinion the legal and moral obligations arising from the combination of factors here would produce a higher percentage award than that in Tenorio.

[15]         The amount remaining in the estate is somewhat uncertain, between $480,000 and $600,000. As best I can, based on the information before me, I have taken into account the assets that have passed outside the estate. In order to avoid unnecessary additional litigation, bearing in mind the principle of proportionality, I think I should award an easily determinable amount.

I award the plaintiff $155,000 or 2/7th the net value of the estate, whichever sum is greater. In my view that amount provides a not insubstantial sum to the plaintiff, recognizing a significantly lengthy relationship but at the same time, taking into account all of the assets passing, both outside and inside the estate, and is appropriately mindful of both the legal and moral claims.