Changing a will after death is done by application to vary the will of the deceased for being inadequate and unfair. Such an application for changing a will after death can only be brought by a spouse or a child of the deceased. Spouse includes both common-law and married partners, whether same-sex or opposite sex (sees s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13, also known as “WESA”).
Who is a common-law spouse?
Whether in a same-sex or opposite sex relationship, to be entitled to bring an application for changing a will after death, a person must establish that they were the deceased’s “spouse” as defined by the law in BC (see s. 2 of WESA). If the couple were not actually married, the person seeking to change the will after death must prove that they lived with each other in a marriage-like relationship for at least two years at the time of his or her partner’s death.
Criteria of a “marriage-like” relationship
The criteria to be considered when determining if a relationship was “marriage-like” are well-settled. The generally accepted characteristics of a marriage-like relationship include shared shelter, sexual and personal behaviour, services, social activities, economic support and children.
Applying the criteria to same-sex and opposite-sex relationships
The courts have recognized that the same-sex couples and opposite-sex couples share the BC Spousal Support for Common-Law Same-Sex Couples and that no single relationship is likely to display all of the enumerated features or to manifest each to the same degree. For example, lack of children and absence of sexual relations are not on their own determinative. The extent to which the different elements will be taken into account varies with the facts and circumstances of each case.
Societal perception of couple as “spouses”
That being said, one area of recognized difference is societal perception of the couple, which is a generally accepted characteristic with respect to opposite-sex partners. I recently discussed the claim of a person in an opposite-sex relationship whose common-law partner died without a will. Evidence of community recognition of the relationship weighed heavily in the court’s decision that the surviving partner was in fact the deceased’s spouse and thus was entitled to inherit from his estate. In other cases, the courts have recognized the lack of consensus on societal perception of same-sex couples and as such, the “recognized in the community as a couple” criteria is not be imposed on all same-sex couples, and lack of such recognition will not, on its own, be fatal to a application for changing a will after death.
Weighing societal perceptions on an application for changing a will after death
In Chowdhury v. Argenti Estate, 2007 BCSC 1207 an application for changing a will after death was brought by a man against the estate of his same-sex partner. The deceased had been a “closet homosexual”, a fact that his friends were “stunned” to learn on his death. In the court’s view, the fact that the relationship had been kept secret was not on its own a reason to deny the surviving partner’s application for changing the will after death of his partner. The court recognized that not all of society approves of, or recognizes, same-sex relationships and that in some communities, openly gay people may be subjected to prejudice. There may be reasons unique to same-sex couples for keeping a close, loving marriage-like relationship a secret from their employers, family and friends.
Changing a will after death denied due to timing
The secretness of the relationship was not fatal to the application for changing the will after death in Chowdury – but timing was. The right to bring an action for changing a will after death is extended to a common-law spouse, whether same-sex or opposite sex, who is at the time of his or her partner’s death, living or cohabiting with that partner. In other words, the marriage-like relationship must be continuing at the time of the partner’s death. The evidence in Chowdury was clear that if there was a “marriage-like” relationship, it came to an end in 1996 when the deceased told the surviving partner to move out after living together in secret for three years. While their sexual relationship continued at times over the years, it was not exclusive and the evidence resoundingly showed that the deceased had no intention of ever allowing the applicant to move back in between 1996 and the date of his death in 2003.
Take home point on changing a will after death
Changing a will after death is done by application to vary the will of the deceased for being inadequate and unfair. Such an application for changing a will after death can only be brought by a spouse or a child of the deceased. If the partners were not married, the surviving partner seeking to challenge a will after death must prove that the relationship was sufficiently “marriage-like” at the time of death so that the surviving partner can be said to have been the deceased’s common-law spouse.