In Morgan v. Pengelly Estate, 2011 BCSC 1114, the court heard a wills variation claim brought by a man who had been left out of his partner’s will; the court decided that the moral obligation to the surviving spouse would be satisfied by a bequest of $225,000 and varied the will accordingly.
What is adequate for a person making a wills variation claim is very case specific. In this post, we will take a closer look at Morgan v. Pengelly Estate to determine why the court varied the will in favour of the surviving spouse.
Mr. Morgan and Ms. Pengelly had known each other for many years when they began living together in a marriage-like relationship. At that time, he was a divorced retiree and she was a widow. They did not legally marry but had a ceremony to celebrate their relationship. Throughout their nine years together, they lived in a home owned by Ms. Pengelly. They kept their finances separate. Ms. Pengelly was in the process of selling one of her properties before she died and she made it known that she wanted to gift Mr. Morgan with $100,000 from the sale proceeds. She died in 2006 before the sale could take place.
When Ms. Pengelly died, her will divided her nearly $2.2 million estate equally between her three adult sons. Mr. Morgan was left out of Ms. Pengelly’s will. After her death, Mr. Morgan continued to reside in one of Ms. Pengelly’s properties but was later told by her sons to leave. Mr. Morgan, who was of limited means, brought a wills variation claim.
On a wills variation claim, a will-maker’s intentions are not to be ignored. The court will step in to vary a will only so far as required by wills variation legislation – in British Columbia, that legislation is called the Wills, Estates and Succession Act or “WESA.” When determining fair division of an estate under WESA, the court examines the will-maker’s intentions, as well as the will-maker’s legal and moral obligations to his or her spouse and children.
In the Morgan case, the will-maker’s intentions were clear: Ms. Pengelly made it known during her lifetime that she intended for her sons to share the bulk of her estate, and her will reflected that intention. But that did not end the matter – the court had to consider whether the will met her legal and moral obligations to her partner and children.
The legal obligation to provide maintenance and support for a spouse during life guides the legal obligation on death. To determine what is fair on a wills variation claim, the court will look to the Divorce Act and family property legislation to determine entitlement of the surviving spouse to support and property division as if the spouses had separated at the time of death.
In this case, Mr. Morgan and Ms. Pengelly had signed an agreement which stated that neither would owe the other support if they separated, and that neither had a claim to the estate of the other on death. The court examined this agreement and determined that it ousted any legal obligation Ms. Pengelly may have had toward Mr. Morgan.
Ms. Pengelly did not owe a legal obligation to provide for her sons as they were independent adults at the time of her death.
The next step for the court on the wills variation claim was decide if the will met the deceased’s moral obligations. The following factors influenced the finding that the moral obligation to Mr. Morgan was not met by Ms. Pengelly’s will:
As a result, the will was varied to provide Mr. Morgan with $225,000 (about 10% of Ms. Pengelly’s estate). The rest of her estate was split equally between her three sons.
When determining fair division of an estate on a wills variation claim, the court examines the will-maker’s intentions, as well as the will-maker’s legal and moral obligations to his or her spouse and children. What is fair and adequate provision for a person making a wills variation claim is very case specific.
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