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BC Wills Variation: Legal and Moral Duties to Second Spouse


In BC wills variation claims, the courts are often asked to weigh the legal and moral duties of a will-maker to a second spouse against the claims of adult independent children from the will-maker’s first marriage. I have previously discussed the principles the court applies to determine fair division of an estate and the factors the court considers when balancing legal and moral obligations in BC wills variation proceedings.

While each BC wills variation case turns on its own unique facts, it is generally true that moral claims of adult independent children should not overshadow a will-maker’s moral duty to a spouse, especially where the relationship was a long-term one between caring, dedicated spouses and the size of the estate makes it possible to fully address the moral duties toward all beneficiaries.  The BC courts recently applied that principle in Unger v. Unger Estate, 2017 BCSC 1746  to vary a will that provided nothing to the will-maker’s spouse of 34 years.

BC wills variation claim in Unger v. Unger

Jacob Unger died in September 2013 at the age of 82. His will provided that after $20,000 bequests to each of his two daughters, the residue of his estate was to be divided equally among his four adult children. Mr. Unger’s will stated that he had not provided for his wife in his will because during his lifetime he transferred to her 50% of the matrimonial home. Mrs. Unger, age 80, commenced a BC wills variation claim seeking to vary her husband’s will. She was Mr. Unger’s second wife, having married him in 1981. She had two adult children from her first marriage. Mrs. Unger took the position that Mr. Unger’s will did not make adequate, just, and equitable provision for her. The defendants (Mr. Unger’s children) opposed any variation to their father’s will.

Main estate assets: The matrimonial home and joint bank account

The matrimonial home, located at 22674 132nd Avenue, Maple Ridge, was purchased in 1981 for $220,000 and registered in both Mr. and Mrs. Unger’s names as joint tenants. Mrs. Unger did not financially contribute to the purchase price of the matrimonial home. She did not have any assets when she entered the relationship with Mr. Unger and did not work during the relationship. In 1993, Mr. and Mrs. Unger separated and Mrs. Unger commenced matrimonial proceedings which resulted in an order that severed the joint tenancy. Mr. Unger registered the severance of the joint tenancy on the title to the matrimonial home. Later in 1993, Mr. and Mrs. Unger reconciled, but the title to the property was not changed. As such, at the time of Mr. Unger’s death in 2013 the home was not held by Mr. and Mrs. Unger as joint tenants. The matrimonial home was sold, and thus the largest asset of Mr. Unger’s estate was 50% of the net sale proceeds. The other main asset was $100,000 held in an account held jointly by Mr. Unger and one of his daughters.

Basic legal principles in BC wills variation proceedings

BC wills variation proceedings require the court to engage in a two-step inquiry:

  1. Was adequate provision made for the proper maintenance and support of the applicant? If the court finds that adequate provision has been made then the inquiry goes no further.
  1. If adequate provision has not been made, the second step is to consider what provision would be adequate, just and equitable in the circumstances.

In considering the first step, the court must assess the will-maker’s legal and moral obligations. The legal obligation considers what the law would have imposed on the will-maker had the question of provision arisen during the will-maker’s life. Where the parties are not separated or divorced at the time of death, the law will still impose uncrystallized legal obligations that a will-maker owes to his or her spouse. Legal obligations are found in the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp), family property legislation, and the law of constructive trust: Tataryn v. Tataryn Estate [1994] 2 S.C.R. 807. Moral duties, on the other hand, have been described as “society’s reasonable expectations of what a judicious person would do in the circumstances” (per Tataryn).

Legal duties of the will-maker

Mrs. Unger was Mr. Unger’s partner for 34 years and remained with him despite his abusive conduct towards her. In the will, Mr. Unger explicitly stated that he transferred 50% of the matrimonial home to Mrs. Unger during his lifetime without any contribution by her. The court concluded that Mrs. Unger’s 50% would have been presumed a gift under the common law.  With respect to the other 50% of the net sale proceeds from the sale of the matrimonial home, the court applied the provisions of the Family Law Act and determined that at the time of Mr. Unger’s death, Mrs. Unger would have had a strong claim for both division of property and spousal support per Mr. Unger’s uncrystallized legal obligations.

Moral duties of the will-maker

In assessing moral duties in a second marriage, the court is required to consider a number of factors. An important consideration in determining the moral duty owed to a second spouse is that spouse’s contribution to the estate. Although Mrs. Unger did not financially assist in the payment of the purchase price of the matrimonial home, she did make contributions to its preservation and enhancement in the 30 plus years of ownership. Another factor of significance in this case was that the matrimonial home was initially registered in joint tenancy at the time of its purchase in 1981. It was only as a result of the order in the 1993 family law action that the joint tenancy was severed. But for the 1993 order, it was highly likely that the matrimonial home would have remained in joint tenancy and would have passed to Mrs. Unger.

Mr. Unger also owed a moral duty to his children; however, the claim of the spouse was stronger. Mr. Unger’s children were all adults and had been financially independent of their father for many years. In assessing whether Mr. Unger’s moral duty to his children was fulfilled, the court considered sums provided by Mr. Unger to his children during his lifetime, including a 2010 transfer of $100,000 into a bank account held jointly by Mr. Unger and one of his daughters. The evidence on the nature of the transfer was that Mr. Unger provided this money with the intent that his children would receive it (in other words, the “presumption of resulting trust” was rebutted. The money in the joint account was intended as a gift and did not form part of his estate. However, the money in the joint account did play a role in assessing whether Mr. Unger’s moral obligation to his children had been fulfilled. Given the circumstances of the joint bank account and the additional sums provided to his children (both in his lifetime and in his will in the form of specific bequests), along with the residue, Mr. Unger’s moral duties to his adult children were satisfied.

Court allows BC wills variation claim

In weighing the totality of the evidence in light of the legal principles, the court concluded that Mr. Unger failed to discharge his legal and moral duty to his wife when he provided her with nothing under his will. Mr. Unger’s purported rationale for excluding Mrs. Unger from the will was not valid. His testamentary autonomy had to yield to “adequate, just and equitable” provision for Mrs. Unger, which on the facts of this case required that she receive 30% of the residue of the estate, with the remaining 70% equally distributed between Mr. Unger’s four children.

Take home point: Balancing legal and moral duties on a BC wills variation claim

While each BC wills variation case turns on its own unique facts and there are a number of factors to be considered, it is generally not a viable option for a court to approve a disposition that substantially prefers the moral claims of adult independent children to those of a long-term caring and dedicated spouse. If adequate provision has not been made, testamentary autonomy must yield and the court will vary the will to make provision that is adequate, just and equitable in the circumstances.

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