In Ciarniello v. Ciarniello Estate, 2016 BCSC 1699, the British Columbia court was asked to decide a wills variation claim brought by a long-term second spouse who was essentially left out of her husband’s will in favour of his five adult children (three from his first marriage, and two from his second marriage). The children of the first marriage opposed their stepmother’s application to vary the will, while the children of the second marriage supported their mother’s application.
The second spouse’s claim was successful and she obtained a variation of the will entitling her to 25 per cent of the estate. Let’s look at this case, first to learn the factors the court generally considers when dealing with a wills variation claim brought by a long-term second spouse, and second, why the claim to vary the will was successful in this particular case.
Long-term second spouse; blended family
Marianna Ciarniello was the second wife of Dominic Ciarniello, a Vancouver dentist and businessman. They lived together for 39 years, having been married for 28 of those years. Dominic had five adult children, three from his first marriage which ended in divorce, and two with Marianna.
Throughout their relationship Marianna was a homemaker and caregiver for their children. She also assisted with some of Dominic’s commercial ventures (e.g., she was a contact person for some tenants in properties owned by Dominic’s companies) and took care of Dominic in his later years when his health declined.
Dominic died on April 28, 2013 when he was 80 and Marianna was in her early 60s. Dominic’s will provided that after certain specific gifts, the residue of his over $11 million estate was to be divided equally among his five children. The only gift to Marianna in the will was any interest that Dominic had at his death in their matrimonial home located on Selkirk Street. However, the Selkirk home was in joint tenancy with Marianna so his interest actually passed to her by right of survivorship (i.e., outside of the will).
The wills variation claim
Although Marianna was left with a valuable home, she did not have sufficient income to meet her ongoing living expenses and following her husband’s death had to draw down considerably on her RRIF. She had no other savings. As such, Marianna commenced a wills variation claim, asserting that her husband’s will did not make adequate, just and equitable provision for her.
Adequate, just and equitable provision for spouse and children
Whether or not adequate, just and equitable provision has been made for a spouse or children of a will-maker is viewed in light of two types of obligations: legal and moral. Our estate lawyers previously discussed how the court assesses legal and moral obligations in a recent post examining competing wills claims of stepchildren and a long-term second spouse here: https://onyxlaw.ca/wills-variation/competing-wills-claims-stepchildren-long-term-second-spouse/
How conflicting claims are balanced against each other
When there are conflicting claims to an estate, the court must assign priorities to those claims. Legal claims take priority over moral claims. Some moral claims may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority. Where the estate permits, all claims should be met.
Strength of long-term second spouse’s legal and moral claim
In assessing the strength of the legal and moral claim of a second spouse the court will consider factors such as:
(a) The length of the marriage;
(b) When and how the will-maker’s assets were acquired;
(c) The contribution of the second spouse to building the estate;
(d) How family assets would be divided under the applicable family legislation upon marriage breakdown;
(e) Competing obligations with the children from the first marriage;
(f) Financial circumstances of the spouse;
(g) The size of the estate; and
(h) The value of any assets passing to the spouse outside of the will (e.g., by right of survivorship or by transfer of assets during the will-maker’s lifetime).
Facts supporting variation of the will in Ciarniello
In deciding to vary the will in favour of the second spouse, the court concluded that her legal and moral claims were strong:
- Legal claim: She was Dominic’s loyal, long-term partner of 39 years, mother of two of his children, caregiver for them and for him in his declining period, and participant in his commercial ventures. At the time just prior to Dominic’s death, Marianna would likely have been entitled to an equal division of family property. Looking at the value of Dominic’s assets immediately before death and the assets of Marianna, it was clear that she did not receive one-half of the family property. As such, Dominic’s will did not meet the legal obligation to his spouse. There was no legal obligation to any of Dominic’s five children as they were all adults and not dependent.
- Moral claim: Dominic owed a moral obligation to his surviving spouse and the children of both marriages, all adults. The court found that Dominic’s will did not satisfy his moral obligation to Marianna. The factors that gave her moral claim particular strength were the length of their relationship (39 years); the size of the estate (over $11 million); and the fact that since her husband’s death, Marianna was without sufficient cash flow to meet her ongoing obligations to live in the fashion to which she became accustomed.
Take home points regarding wills variation claims of long-term second spouses
In deciding what is just, adequate, and equitable provision for a long-term second spouse on a wills variation application, the court must balance the legal and moral claims of the second spouse against the claims of the deceased’s children and assign each claim its proper priority. A court may vary a will in favour of a second spouse if certain factors are present; in the Ciarniello case, the factors which gave weight to the second spouse’s legal and moral claims to her husband’s estate were the length of their relationship, the size of the estate, and the financial need of the surviving second spouse.