$1.2 Million Left to Ex-Common Law Spouse - Court Varies Will To Split Estate Between Dependent Children

Heathfield (Litigation guardian of) v. Heathfield Estate, [2015] B.C.J. No. 645 

Michael Heathfield died on November 13, 2011 at the age of 53 and was survived by two minor children, Zachary and Shanon.  Michael’s will, dated from 2004, had been made when his personal circumstances were vastly different than when he died.  The will was drafted while he was in a common-law relationship with the Defendant, the mother of Zachary and Shanon.  As per the 2004 will, the Defendant was the sole beneficiary of the estate.  After the couple separated, Michael failed to amend, revoke, or make a new will.  The estate was valued at ~$1.2 million and the Public Guardian and Trustee brought an application to vary the will in favour of the children. 

The action was brought against the estate under the Wills Variation Act by the Public Guardian and Trustee as the children’s litigation guardian.  The PGT sought a declaration that the will did not make adequate provision for the children and an order that the will be varied providing testamentary trusts in favour of the children.  Despite Michael Heathfield separating from the Defendant permanently in 2006, he did not change, revoke or make a new will. 

The will detailed that Michael’s entire estate was to pass to the Defendant, provided she survive him by 30 days.  The children would only inherit if their mother failed to survive their father for the 30 days – in this case, the will provided that the estate be divided equally between the children and held in trust for each of them until they reached 25. 

In holding that the will did not make adequate provision for the minor children, the court highlighted that their father failed in his legal and moral obligations as a contemporary judicious parent.  Their father, in not amending his will from years past, had left his estate to someone whom he did not rely, nor had an agreement with on how they were to subsequently provide for the children (proper maintenance and support). 

The court recognized that the Defendant was not a member of any class of persons whose interests are protected by the Wills Variation Act in relation to the will.  They had separated some time ago and she may owe a moral and legal duty to her new spouse and he may owe her own as well, but Michael, the deceased, owed her no legal or moral duty when he died.  Despite this, she still received $800,000 in insurance proceeds after his death (nearly 7 times the amount payable in trust on the children’s behalf) – and was the sole beneficiary of his sizable estate.

The court acknowledged that Zachary and Shanon, still minor children at the time of trial, had standing to bring a claim under the WVA.  It was obvious that he owed his children a legal duty in addition to a moral one and the court granted the order varying the will allowing the children to receive, in trust, the entire residue of the estate.    

Madam Justice Ballance provided a helpful review of the applicable law and a highlight on the limited number of decisions in the area of what constitutes adequate, just and equitable in relation to minor children.  

[68]        In the course of his reasons, the trial judge described Cameron as the first of its kind.  While it is accurate to say that it was a test case, the issue of launching a will variation claim on behalf of minor children where the estate was bequeathed to the surviving parent, had been briefly canvassed in the earlier decision of Re Malat (B.C.S.C., Vancouver Registry No. X8945/75, Meredith J. 18 August 1975, Unreported) [Malat].

[69]         In Malat, the Public Trustee applied under the now repealed Equal Guardianship of Infants Act to be appointed guardian of the deceased’s two minor daughters for the limited purpose of bringing an application under the predecessor legislation to the WVA.  The application was dismissed on a technical ground.  Although the court was not required to confront the variation issue on the merits, in dismissing the application, Meredith J. remarked unfavourably, in obiter dicta, about the prospect of such proceedings pitting the children against their mother, triggering unwanted legal costs and the risk of family discord.  Commenting that the possible disruption might be more harmful to the children than any benefit they might receive from the estate, Meredith J. continued at p. 2:

I have not the slightest reason to suppose that Mrs. Malat would do other than the best for all her children during her lifetime, nor should I speculate that she will do other than make adequate provision for her children out of what may remain of her assets, including those inherited from her husband on her death.

Accordingly, as I am inclined to the view that the order sought would detract from rather than advance the interest of the two children, the order is refused.

[70]        Although Malat does not appear to have been drawn to the attention of the trial judge in Cameron, he echoed many of the sentiments expressed by Meredith J.

[71]        In the end, Mr. Cameron was awarded his costs against the Public Trustee.  The Public Trustee sought leave to appeal the judgment with respect to costs only.  Leave was granted on the condition that the Public Trustee undertake to pay the special costs “of the estate” no matter what the outcome of the appeal and, failing that, the application for leave would be dismissed.  The leave application was abandoned. 

IV.         ANALYSIS

[72]        In my opinion, Cameron is neither binding nor persuasive authority in determining whether the Deceased adequately provided for his two minor children.

[73]        In the first place, the facts in Cameron are readily distinguishable in a meaningful way from the case at hand.  More crucially, Cameron was decided before Tataryn clarified and refined the analytical approach.  In my respectful view, the teachings of Tataryn have affected the validity of Cameron insofar as it purports to be authoritative for the broad proposition that a variation claim brought by a minor child is doomed to fail where the surviving parent is the sole or primary beneficiary and has cared for that child, in factual situations of the kind present here.  

[74]        With respect to the material factual differences, unlike the Camerons, the Deceased and Ms. St. Jacques had been separated for many years before the Deceased’s death.  Ms. St. Jacques had not contributed to the assets comprised in the Deceased’s estate; they did not hold any joint assets together and there had been no co-mingling of their financial resources for many years.  Any financial relationship they may have shared had been fully and finally severed by way of the 2008 Consent Order. 

[75]         At the time of the Deceased’s death, he and Ms. St. Jacques did not have mirror image wills by which they each provided for one another and, on the death of the survivor, made identical provision for Zachary and Shanon.  A related difference of significance is that there was no evidence that the Deceased and Ms. St. Jacques were relying on each other, much less had an agreement of the kind made by Mr. and Mrs. Cameron, to the effect that the survivor would provide for the proper maintenance and support of their children.  Indeed, the Deceased’s interlineations on the Will, which are consistent with his statements to Ms. Cardon, provide striking evidence to the contrary, namely that he was not relying upon and had no agreement with Ms. St. Jacques in that regard. 

[76]        Ms. St. Jacques is not a member of the special class of persons whose interests are protected by the WVA in relation to the Will.  She was involved in a relationship with a new spouse to whom she would likely owe a moral and legal duty under her own will on her death.  The Deceased owed her no legal or moral obligation when he died.  Even so, she received $800,000 in insurance proceeds as a result of his death – a sum that is nearly seven times greater than the insurance proceeds payable in trust on the children’s behalf.

[77]        Only Zachary and Shanon, ages 12 and 9 respectively at the time of trial, have standing to bring a claim under the WVA with respect to the Will.  That the Deceased owed them a legal duty is undisputed and is underscored by the fact that, at the time of his death, he was obligated by court order to pay child support and contribute toward their special and extraordinary expenses.  Similarly, there can be no question but that he also owed his minor and financially dependent children a moral duty.  

[78]        The children are in their formative years.  Zachary is an active pre-teen with many interests, including football, skateboarding and the martial arts.  Shanon is passionate about horseback riding and rides her own horse at a competitive level.  Music is part of both their lives.  Zachary plays the saxophone in the honour band at school and Shanon plays the piano.  Both children have displayed potential and curiosity in a variety interests, and their futures are wide open to opportunities and challenges in the years to come, including carrying on with sports and music, branching out into new endeavours and pursuing post-secondary education.

[79]        The interlineations on the Will are an interesting feature in this case.  They are capable of being interpreted as indicating that the Deceased himself recognized the legal and moral duty he owed to his children in the significantly changed circumstances that had unfolded since he executed his Will in 2004.  He likewise acknowledged the existence of his testamentary obligations to them in the statements he made to Ms. Cardon.  Although by no means determinative, this is a relevant consideration in the overall analysis:  Hancock v. Hancock, 2014 BCSC 2398 (CanLII) at para. 107.

[80]         It is clear that the interlineations were not properly executed and, therefore, are not validly incorporated as part of the Will, nor serve to alter or revoke it.  Nevertheless, insofar as they, together with the statements the Deceased made to Ms. Cardon, reflect his true intention on death, the tension the Court typically strives to balance between will-makers’ testamentary autonomy or intention on the one hand, and the discharge of their legal and moral obligations on the other, is somewhat attenuated in this case.

[81]        I am not persuaded by Ms. St. Jacques’s prediction that varying the Will carries the potential of opening the litigation floodgates.  In this regard, it must be appreciated that at the time of the Deceased’s death, s. 16 of the former Wills Act, R.S.B.C. 1996, c. 489, was in force.  It stipulated that a gift in a will to a married spouse was revoked if, after the will was made and before the will-maker died, the marriage was declared a nullity, there was a judicial finding the marriage was void, or a divorce or decree of judicial separation was granted.  In those situations, the will would take effect as though the estranged or former spouse had predeceased the will-maker.  The policy behind this rule was to prevent a spouse from deriving a benefit from the estate of the deceased spouse where their spousal relationship had broken down or dissolved and the deceased spouse had neglected to update his or her will.

[82]        Section 16 applied only to married spouses and not to common law spouses.  The lack of symmetry between the two spousal groups was rectified with the enactment of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (the “WESA”) which came into force effective March 31, 2014.   Section 56of the WESA provides that, subject to a contrary intention appearing in the will, a gift to a person who has ceased to be a married spouse or a common-law spouse is revoked and must be distributed as if the surviving spouse had predeceased the will-maker.  Section 56 stands as a significant safeguard against a floodgate of litigation in cases of this kind where the will-maker dies on or after the WESA came into effect, leaving a will dated either before or after March 31, 2014.

[83]        To this I would add that s. 58 of the WESA empowers the Court to treat testamentary-like writings that do not comply with the statutory execution requirements, such as the Deceased’s interlineations on the Will, as though they are a valid will or alteration to or revocation of a will, where it is satisfied that they represent the maker’s testamentary intentions.  In cases with facts akin to those present here, the ability to invoke the Court’s remedial power to validate such non-compliant writings serves to further downgrade the forecast of a litigation floodgate to a mere trickle.

[84]        Ultimately, the search is for contemporary justice in light of modern expectations and values.  Those expectations and values are dynamic and “are  necessarily bound by the views and awards made in earlier times:  Tataryn at 814-15.

[85]         In weighing the totality of the evidence in the light of the animating principles, I conclude that by leaving the entirety of his substantial estate to his former spouse to whom he owed no legal or moral duty, and on whom he was not relying and with whom he did not have an agreement as to how she would subsequently provide for the children, the Deceased did not fulfill the legal or moral obligations of a contemporary judicious parent.  The proposition that he discharged his legal and moral obligation to Zachary and Shanon, and thus adequately provided for them under his Will, is untenable when assessed within the Tataryn paradigm.   In the circumstances of this case, the testamentary disposition under the Will in the nature of a gift-over to the Deceased’s children, which will never come about, does not fall within an appropriate range of options.  In the result, the Will fails to make adequate provision for Zachary and Shanon.

[86]        The Will is to be varied only to the extent required to provide the just provision to Zachary and Shanon that the Will failed to achieve, commensurate with the intense legal and moral obligations owed to them by their father.  In my opinion, in order to appropriately discharge the Deceased’s legal and moral obligations to his minor children, the Will is to be varied so as to create testamentary trusts for them, funded by the entire residuary estate.