Court Denied Wills Variation After Wife Lived in Family Home 12 Years After Death of Husband

Eastman v. Eastman Estate, 2016 BCSC 1728

The litigation had been commenced many years ago in 2003 and had essentially been sitting stagnant as no substantial steps had been taken to move the matter forward.  The plaintiff, the wife of the deceased, had begun the action after her husband’s death in 2002 and the action was brought ahead after her subsequent death in 2015.  The action was brought by the plaintiff’s personal representative and the claim sought variation of the late husband’s will as it did not make adequate, just and equitable provision for her.  The action was brought by summary trial application.  Importantly, since the testator’s death, the plaintiff had been living in the matrimonial home and the executors of the estate, the testator’s children, had been providing some money from the estate to assist the plaintiff’s living situation. 

The testator and the plaintiff had been married for 18+ years and it was the second marriage for both of them.  The testator’s will appointed his three children as executors and had provided a life estate in the income from the residue of his estate for the plaintiff.  At the time of death, the estate was made up of the family home, a Lincoln, and approximately 117,000 in cash and investments.  Some of the cash was used to pay the debts and expenses related to funeral and administration costs for the estate. 

As the plaintiff did not wish to leave the family home (they had lived there for several years and it was purchased during their marriage) it was decided in 2003 that she would stay there if she did not move forward with litigation.  The plaintiff lived in the home until she moved to a residential care facility in 2014.  She died the following year. 

The executors sold the home in 2016 and the net proceeds have been held in trust. 

Notably, most of the value of the estate has been depleted since the plaintiff passed away.  The defendants claimed the testator’s obligations had been met by the provisions of the will and the plaintiff continuing to reside at the home for more than a decade after his death.  They also claimed the estate had been depleted all in aid of providing for the plaintiff, constituting a change of circumstances that should inform the court’s analysis. 

Decision: 

The plaintiff’s claim was dismissed.

As the litigation began in 2003, the claim was governed by the Wills Variation Act.  The judge quoted from Dunsdon v. Dunsdon and Tataryn principles and took into consideration the substantial change in the circumstances of the plaintiff in coming to their conclusion. 

The judge looked to the testamentary intentions of the parties by viewing their respective wills.  It seemed to be consistent that each was keeping his or her estate to themselves, with the exception that the testator had made a priority provision for the plaintiff’s benefit by providing a life interest to her.  The plaintiff’s will made provision only for her own family. 

The judge also looked at the relationship arrangements the couple had made.  The family arrangement the parties had was largely of the “separate economic path” model and the testator had seemed quite firm that they would split every bill or receipt.  The evidence suggested each would pay half of the expenses and, upon death, both were intending to provide for their children. 

While the judge did consider the relevant legislation at the time, namely, the Family Relations Act, there were considerable changes in circumstances in the time that passed between the testator and plaintiff deaths.  These changes included a depletion of the estate, the plaintiff’s death and the agreement that enabled the plaintiff to remain living in the home.  It was also noted that the executors continued to have a positive relationship with the plaintiff and that virtually the entire estate, other than the home, was spent upon the plaintiff’s well-being.   

The judge was satisfied that, at the time the testator died, he made adequate, just and equitable provision for the plaintiff, taking into account the arrangements they had made. 

[32]         As the litigation was commenced under the Wills Variation Act, R.S.B.C. 1996, c. 490 [the WVA], that is the Act that continues to apply to these proceedings.

[33]         Section 2 of the WVA provides:

Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the testator's spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator's estate for the spouse or children.

[34]         In Dunsdon v. Dunsdon, 2012 BCSC 1274, at paras. 130–37, Ballance J. succinctly set out the law regarding wills variation claims. Rather than paraphrase, I will reproduce her reasons here:

[130]   Tataryn v. Tataryn, [1994] 2 S.C.R. 807 is the leading authority in British Columbia on wills variation. In Tataryn, the Supreme Court of Canada identified the two fundamental interests protected by the WVA. The main statutory objective is the adequate, just and equitable provision for a testator’s spouse and children; the other is the testator’s testamentary autonomy. The conceptual essence of the statute is to permit judicial interference with testamentary freedom where adequate provision has not been made in respect of a narrow protected class. Testamentary freedom is, therefore, subordinate to the main objective of the WVA and must yield to the extent required to achieve adequate, just and equitable provision for the applicant spouse and/or children. That said, the judicial approach is not to start with a “blank slate and write a will designed to right all the perceived wrongs of the past, nor interfere only to improve upon the degree of fairness of a will, if the testator has met his obligations under the [WVA]”: Chan v. Lee (Estate), 2004 BCCA 644 at para. 43.

[131]   The concept of adequate provision is a flexible notion and is highly dependent upon the individual circumstances of the case. The adequacy of a provision is measured by asking whether a testator has acted as a judicious parent or spouse, using an objective standard informed by current societal legal and moral norms. The considerations to be weighed in determining whether a testator has made adequate provision are also relevant to the determination of what would constitute adequate, just and equitable provision in the particular circumstances.

[132]   Legal norms are said to be the obligations that would be imposed upon the testator during his or her life if the question of provision for the claimant spouse or child were to arise. Accordingly, a testator’s legal obligations that could have arisen in relation to support, division of matrimonial property and the law of constructive trust/unjust enrichment are relevant to the assessment…. In terms of the guidelines for societal moral norms, Tataryn proposed that they are “found in society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards”: at 821.

[133]   All legal and moral claims should be satisfied where the magnitude of the estate permits. In cases where complete satisfaction of all claims is not possible, the competing claims are to be prioritized. Claims that would have been recognized as legal obligations during a testator’s lifetime should generally take precedence over moral claims: Tataryn, at 823. The court must also weigh the competing moral claims and rank them according to their strength. While claims of independent adult children may be more tenuous than those of a spouse or dependent child, where the size of the estate permits, some provision should be made for them unless the circumstances negate such an obligation: Tataryn, at 822 - 823.

[134]   In the post-Tataryn era, the following considerations have been accepted as informing the existence and strength of a testator’s moral duty to independent children:

•  relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;

•  size of the estate;

•  contributions by the claimant;

•  reasonably held expectations of the claimant;

•  standard of living of the testator and claimant;

•  gifts and benefits made by the testator outside the will;

•  testator’s reasons for disinheriting;

•  financial need and other personal circumstances, including disability, of the claimant;

•  misconduct or poor character of the claimant;

•  competing claimants and other beneficiaries:

(See Clucas v. Clucas Estate, [1999] B.C.J. No. 436; McBride v. McBride Estate, 2010 BCSC 443; Yee v. Yu, 2010 BCSC 1464; Wilson v. Lougheed, 2010 BCSC 1868).

[135]   These considerations tend to overlap and are not approached in isolation as independent, air-tight categories.

[137]   The Tataryn Court also recognized that there is no single way for testators to divide the estate in order to discharge their legal and/or moral duties. It emphasized that it is only where a testator has chosen an option that falls below his or her obligation as defined by reference to the contemporary notion of legal and moral norms, that a court will vary a will so as to achieve “the justice the testator failed to achieve”: at 823-824

[35]         I note that the onus is on the claimant here to prove that the will-maker failed to make adequate provision for her in his will. Further, while the assessment of whether adequate testamentary provision was made is generally based on the circumstances existing at the time of the will-maker’s death, a substantial change in the circumstances of the claiming beneficiary, such as his or her death, may also be relevant: Wilson v. Lougheed, 2010 BCSC 1868, at paras. 330–31.

 ...

[45]         I do not see this as a classic traditional marriage where the parties fully and unreservedly merged their economic lots. There was a clear element of “what’s mine is mine” and a practical cooperative day-to-day living style.

[46]         The arrangements that the parties had were largely of the “separate economic path” model. Evidence shows that Mr. Eastman was quite firm about splitting every bill or receipt—he and the plaintiff always paid their share. While some may see that as harsh, there is nothing inherently wrong in keeping separate finances. That was how they chose to organize their affairs.

[47]         These two circumstances, the wills and the separate finances, are indicative to me of the expectations that the plaintiff was reasonably entitled to hold.

[48]         The evidence satisfies me that, during the parties’ marriage, they had an agreement. By that agreement, the plaintiff paid one half of the expenses incurred for routine purchases, whether groceries, restaurants, or vacations. Upon death, both were intending to provide for their children.

[49]         With regard to Mr. Eastman’s legal obligations, I accept that, based on the relevant family legislation at the time of Mr. Eastman’s death—the Family Relations Act, R.S.B.C. 1996, c. 128—the plaintiff may have been entitled to a share of the family assets and spousal support. However, I must also consider the changes in circumstances in the considerable time that has passed between Mr. Eastman’s death and trial. Those changes include the depletion of the estate, the plaintiff’s death, and the Standstill Agreement that enabled the plaintiff to remain living in the Marital Home.

[50]         The material provides a list of expenses that were incurred for the plaintiff's living expenses in the period between when she left the family home and went into assisted care and the date of her passing.

[60]         In the final analysis, I am satisfied that, at the time Mr. Eastman passed, his will made adequate, just, and equitable provision for the plaintiff, taking into account the arrangements that they had. I consider the fact that the Executors continued to have a positive relationship with the plaintiff and that virtually the entire estate, other than the home, was spent upon the plaintiff's well-being to be significant considerations. Accordingly, it is my conclusion that her application under the WVA must fail.