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BC Wills Variation Act Lawyer Lorne MacLean

The BC Wills Variation Act and Vancouver estate litigation lawyers at the Vancouver, British Columbia unfair wills and disputed wills and estate litigation law firm of MacLean Law Group want you to be aware of a key new BC Court of Appeal case  concerning a Wills Variation Act  dispute between a common-law spouse and an adult child.  If you feel you have been disinherited or unfairly treated in a will call Lorne MacLean QC of  our estate litigation department  immediately at 604-602-9000 today. 

This case shows dramatically the interplay between the common law spouse’s entitlement to one third  of the estate in the case where there is no will versus what  the court will consider to be adequate provision for the  maintenance and support of a common law spouse who is provided for or excluded from string under a will which can well be higher than a one third share.

The key finding in this case is that where the deceased testator makes clear in his or her will a desire to make adequate provision for the maintenance and support of a common-law spouse and where the common-law spouse challenges the will or their share is attacked under the will by another beneficiary- unlike in cases where there is no will- the claim of the common law spouse will not be restricted to only a one third share in the estate but may well be substantially larger.  In this case the deceased’s son claimed a variation of the will that left him with only $10,000 out of an estate of $432,000.  He argued the common law spouse’s share in the will was overly generous but was too stingy with respect to him as the son of the testator.

In Hall V. Korejwo 2011 BCCA 355  the Court of Appeal modestly increased the provision for maintenance and support of an adult child by $40,000 over that of what the trial judge had awarded but more importantly reinstated most of the estate interest willed  to a common-law spouse who had been in a 4 year relationship with the deceased back to roughly 85% of the total estate as the testator’s will had largely set out. .  The trial judge had given the common law spouse only a life estate in the home but the Court of Appeal upped the award to near what the will had given the common law spouse.   This case tracks other generous provision decisions for common law spouses who made claims to vary a will of their partner such as Mazur v. Berg 2009 BCSC 1770 where a common law spouse in a 6 year relationship received 55% of the estate and Rose and Bloomfield 2010 BCSC 315 where a common law spouse received 70 % of the estate after proving he paid for expenses during the relationship and he cared for the deceased during her illness.  In both these cases the common law spouse demonstrated a clear financial need.

The case is complex but we provide key extracts from it below:

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