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Estate Law

Father Died Without A Will. Does His Common Law Partner Inherit His Estate?

When is a person a “common law spouse” who is entitled to an inheritance? That was the main issue to be decided in Jones v. Davidson, 2020 BCSC 1371. In that estate case, Justice Mayer concluded that a BC woman did not meet the definition of common law spouse at the time of her partner’s death. As a result, the woman was not entitled to a share of her partner’s estate under the rules of intestacy. The deceased man’s estranged adult son was found to be his sole heir and the woman was ordered to vacate her partner’s home.

BC intestate rules include common law spouses

When a person dies without a Will, BC rules of intestacy (WESA, Part 3, Division 1) dictate how the estate is to be distributed. If the deceased is survived by a spouse and children, the surviving spouse gets a preferential share of the estate ($300,000 if the spouse is the parent of the children; or $150,000 if the spouse is not the parent of the children) and 50% of the balance of the estate (other 50% goes to the child(ren)). If the deceased did not have a spouse at the time of death, the estate goes to the children of the deceased. The definition of “spouse” includes a common law spouse, but only if the parties lived with each other in a marriage-like relationship for at least two years immediately before the person died.

The deceased in Jones v. Davidson died before the current wills and estates legislation (WESA) came into effect, and so, the intestacy rules of the old Act (i.e. the Estate Administration Act) still applied to govern the distribution of his assets (the preferential share was $65,000 under the old Act, and the spouse was also entitled to a life estate in the spousal home). But the issue would have been the same under either Act: i.e. Did Larry Jones and Tracey Davidson live with each other in a marriage-like relationship for a period of at least two years immediately before Larry’s death on March 18, 2014? If so, Tracey was entitled to a life estate in Larry’s home and preferential share of his estate. If not, Tracey was not entitled to an inheritance under BC intestacy rules.

Father in Jones v. Davidson case died without a Will

Larry Jones died on March 18, 2014 at the age of 66, without having made a Will. At the time of his death his principle asset was his riverfront home in Terrace, British Columbia. Larry had only one child, Eric Jones, who was born in 1971 and lived in the US. Larry and Eric had not been in communication since Eric was a teenager. After Larry’s death, his girlfriend Tracey Davidson applied for and was granted letters of administration in respect of his estate on the basis that she was his common law wife. On July 31, 2014 Tracey transferred Larry’s home into her own name as administratrix of his estate.

History of the romantic relationship

Larry and Tracey first met in the mid 1990’s when they were both college students in Prince Rupert. Both were in other relationships but kept in touch over the years. In late 2010 or early 2011, Larry and Tracey started a romantic relationship. At that time, Larry lived in Terrace and Tracey lived in North Vancouver with her young daughter, Grace. At the start of their romantic relationship, they communicated sporadically by phone and text and would see each other when Larry travelled to Vancouver for work or medical appointments. Tracey made two trips to Terrace to visit Larry, the first in February 2012 and later during the summer of 2012 before giving up her rented home in North Vancouver and permanently moving into Larry’s home in Terrace with Grace at the end of April 2013.

Son challenges claim on his father’s estate

After his father died without a Will, Eric brought an estate case concerning the right to administer and to receive proceeds from his father’s estate. Eric conceded that Tracey and Larry became common law spouses in or about April 2013 when Tracey and Grace moved from North Vancouver to Terrace. However, Eric disputed that Tracey and Larry were common law spouses for the requisite two-year period prior to Larry’s death on March 18, 2014 – that is, by no later than March 18, 2012. When Eric’s estate case went to trial, Tracey was 58 years old and Grace was 16. Since moving to Terrace, they had only lived in Larry’s home.

Was Tracey the common law spouse of Larry?

Tracey had the burden of proving that she was Larry’s common law spouse, as that term is defined in BC estate law, during the relevant two-year period. After reviewing all the evidence, Justice Mayer held that, on a balance of probabilities, Tracey and Larry were not in a marriage-like relationship until April 30, 2013. Therefore, Tracey did not fall within the definition of common law spouse at the time of his death on March 18, 2014. Given that Tracey was not Larry’s common law spouse at the time of his death, the Letters of Administration should not have been granted to her. The evidence established that Eric was Larry’s next of kin and was therefore entitled to be granted administration of his estate. Further, as Larry’s only lineal descendant, Eric was entitled to the entirety of his father’s estate on the basis of intestacy.

Who is a common law spouse when it comes to intestate claims?

While no one factor is determinative, objective factors considered to be persuasive in determining whether there is a “marriage-like” relationship include shared shelter, sexual and personal behaviour, domestic services, social and societal interactions, and attitudes and conduct concerning children. (see here for our detailed discussion of the factors). Subjective evidence of the intention of the purported common law spouses is to be considered, but it must be tested with reference to the evidence pertaining to the objective factors. In Jones v. Davidson, Justice Mayer noted that there was little to no express evidence of the intention of the parties (e.g. their views of the seriousness of their relationship, or their intention for it to be a lengthy relationship). Tracey was found to have misstated the length and nature of her relationship with Larry when it suited her, which negatively impacted her credibility. Objective evidence of their lifestyle and interactions was also unhelpful to Tracey’s case. The evidence established that Tracey and Larry become “boyfriend and girlfriend” in February 2012, but were not acting as a committed couple until after April 2013 when the following events occurred:

  • In May 2013 when Grace registered for school in Terrace and Larry was listed as her stepfather on her registration documents;
  • In October 2013 when Larry revised his extended health and life insurance coverages at work to include Tracey as his common law spouse and Tracey and Grace as his dependants; and
  • In or about early 2014 when Tracey recorded her marital status on her 2013 income tax return as “common law.”

Bottom line on BC intestacy claims by surviving spouses

When a person dies without a Will, proceeds of his or her estate are divided in accordance with the laws of intestacy. The definition of “spouse” entitled to inherit includes a common law spouse, but only if the couple lived with each other in a marriage-like relationship for at least two years immediately before the person died without a Will.