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Can my Dad’s Girlfriend Contest his Will in BC?


Losing a loved one is one of the most challenging experiences anyone can go through. Unfortunately, after a person passes away, their assets and belongings must be distributed among their surviving relatives according to their will. In cases where the deceased did not leave a will, the rules of intestate succession dictate how the estate will be shared. 

In British Columbia, the surviving spouse usually receives the largest portion of the estate. But what happens when there is no spouse? In such cases, the children of the deceased inherit everything. However, the situation becomes complicated when the deceased had a live-in girlfriend who is claiming a share of the inheritance.

With over 20 years of experience, our expert estate and trusts litigation lawyers can help you understand the laws guiding estate inheritance in British Columbia, especially when there’s no will. Contact us today to schedule a free consultation.

This article will cover whether a live-in girlfriend can inherit the estate when a man dies without a will. We’ll examine the case of Turner v. Stabeck, 2020 BCSC 1553, which centers around the battle for inheritance between the deceased’s girlfriend and his adult children.

Overview of the Case Study: BC Father Died Without a Will

can my dad's girlfriend contest his will

Keith Stabeck died without a will or estate plan on September 3, 2018, leaving an estate valued at approximately $600,000. He was unmarried when he died but was in a relationship with Wendy Turner whom he had met in 2015. After Keith’s death, Wendy sought a declaration that she was Keith’s spouse as defined in the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”) and thus entitled to inherit from his estate under the BC rules of intestacy

Keith’s grown-up children, Bradley and Sabrina, disagreed. The first thing they argued was that their father and Wendy only began living together eight or nine months before their father died and that their father was “not serious” about Wendy, to warrant any undue influence on his estate distribution. They said their father was dating other women and did not tell them of plans for Wendy to move in with him until the spring of 2017.

Distributing an Estate Where There is No Will

If a person dies without a will, known as dying “intestate,” their estate is distributed according to the laws of intestacy succession. In a process known as estate administration, the estate will go through probate court, where a judge oversees the distribution of assets. The court appoints an administrator, similar to the role of an executor in a will, who undertakes actions such as paying off debts and taxes and distributing the assets as stipulated by law.

In BC, the law takes close family members such as spouses and children as first-priority heirs. If the deceased does not have direct descendants, they may pass the estate to their parents, siblings, and other distant relatives depending on the unique circumstances.

The surviving spouse of the deceased takes the highest priority to inherit their estate. Because they receive the largest portion of the estate, it’s important to understand who qualifies as a spouse as defined by law to avoid unnecessary legal disputes over assets. 

Section 2(1) of WESA says two people are spouses of each other if they were both alive immediately before a relevant time and:

  • they were married to each other, or
  • they had lived with each other in a marriage-like relationship for at least 2 years.

There was no dispute that Keith and Wendy were living together when he died. Instead, the question for the BC court was the length of the relationship: did their marriage-like relationship begin at least two years before Keith’s death? The answer had significant implications under the intestacy provisions of WESA:

  • If Wendy qualifies as Keith’s spouse under s. 2(1)(b) of WESA, then she inherits a preferential share of $150,000 of his $600,000 estate, plus one-half of the remaining residue.
  • If Wendy did not qualify as Keith’s spouse, his estate would be divided between his two children, Bradley and Sarina, with nothing to Wendy.

Factors That Determine the Existence of a “Marriage-like” Relationship

can my dad's girlfriend contest his will

It can be difficult to determine the spousal relationship status of a given couple. However, the question of timing is of utmost importance in cases such as Turner which involve relationships of relatively short duration. Often, the date when cohabitation began is blurred because most people “ease into” situations, spending more and more time together. 

There are various factors that BC courts consider to determine if two individuals are in a marriage-like relationship. A good reason to understand these factors is that they may affect property and estate rights, support after a break-up, child support, and other legal considerations. These factors include:

  • Sharing a home
  • Sexual and personal interactions
  • Relationship characteristics
  • Household and social life
  • Financial management
  • Children and Parenting
  • Societal perception
  • Future plans for the relationship

The court considers whether the couple share the same residence for a reasonable period of time. However, living together is a flexible criterion as the court can still consider a relationship to be marriage-like even though the couple is not living together. Another factor courts consider is how they treat each other. They consider how intimate they are, their support to each other during adverse times such as sickness, whether they share meals, the extent of their sexual interactions, their expression of emotional attachment,  and even their fidelity commitment.

Additionally, the courts may consider the level of their inter-family relationship – how they relate with each other’s family, their participation in community activities, and their open acknowledgment of themselves as a couple. How they handle money and other financial responsibilities, their financial interdependence, how they take care of their children together (if any), and their commitment to the relationship and plans towards a long-term relationship are other factors that matter.

Note that no one factor is determinative. People structure their relationships in a wide variety of ways, and the indicators of a “marriage-like” relationship such as living together may be present in varying degrees. Hence, it’s important to seek legal advice or consult with a probate attorney to better understand the situations surrounding your loved one’s relationship and the implications on their estate.

Examining Evidence of “Marriage-like” Relationship in a Real-Life Scenario

In the Turner estate litigation case, September of 2016 was the key date (two years before Keith’s death). When Keith and Wendy met in 2015, she lived in New Westminster, BC while he lived in Kamloops, BC. Wendy’s evidence was that their relationship developed quickly and that by the fall of 2015, they decided she would move to Kamloops to live with him in due course. She could not move immediately because she was committed to providing childcare for her grandson in the Lower Mainland during the school week. Wendy’s evidence was that she and Keith made long-term relationship plans as early as Christmas 2015 and she began gradually moving her things to his home at that time. Keith bought Wendy a diamond commitment ring in 2016.

Keith’s children said they never saw the ring and did not hear about it until after their father died. His children also said that their father did not often bring Wendy when he came to visit them (both lived in Vernon, BC). Bradley and Sabrina’s assertions that their father was only in a casual relationship with Wendy were not supported by the evidence of others, including Keith’s brother and sister-in-law and Wendy’s friends and family. All of those people had come to see Keith and Wendy as a couple from a very early stage. There was also a substantial body of evidence, including the ring and statements he made to others, supporting that Keith was of the same mind.

Can You Have a Marriage-like Relationship Without Living Under the Same Roof?

can my dad's girlfriend contest his will

Yes, you can have a marriage-like relationship without living under the same roof in BC, Canada. The BC courts understand that relationships can be both unique and dynamic and must not follow the traditional pattern. Hence, beyond cohabitation, the courts consider several other factors (as listed earlier), to determine whether a relationship is marriage-like.

In our case study, Wendy and Keith “officially” began living under the same roof in early 2017 when Wendy was able to give up her New Westminster apartment, no longer needing to travel to the Lower Mainland to provide childcare for her grandson. Importantly, in the Court’s view, by that point, it was not a change in their relationship but a finalization of a plan they had formed and were working to achieve by September 2016. The Court was satisfied that Wendy and Keith were in a marriage-like relationship at the date of his death on September 3, 2018, and had been in such a relationship for at least two years preceding that date. She was therefore his spouse as defined in s. 2(1) of WESA. As the spouse, Wendy was entitled to a preferential share of $150,000 of Keith’s estate and to one-half of the remaining residue. Costs were payable from Keith’s estate.

Conclusion

When a father dies without a prior will in BC, the distribution of his estate among his children will largely depend on whether he had a spouse at the time of his death. The definition of “spouse” under BC’s intestacy rules is inclusive of both married couples and those in marriage-like relationships that have lasted at least two years preceding the death. The determination of whether a marriage-like relationship existed is based on various factors such as the nature of the relationship, the intentions of the couple, and how they presented themselves to others. Note that it is possible for individuals to be in a marriage-like relationship even if they maintain separate residences. In such cases, the children of the deceased will not inherit anything unless there are no surviving spouses or partners. 

Therefore, it is crucial for individuals to have a clear and valid will in place to ensure that their estate is distributed according to their wishes, and to avoid any conflicts and disputes among their surviving family members. If you’ve got questions about estate litigation or estate planning matters, our team at Onyx Law Group is always available to help. Reach out to us by scheduling a free 30-minute consultation today.

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