Family, Estates & Trusts 



Vancouver Estate Law: Claims by Common-Law Partners

Vancouver estate law offers several avenues by which a surviving partner can pursue monetary judgement, either by way of inheritance from the deceased partner’s estate or from the person who caused the deceased’s death. In many situations, the entitlement to inheritance or compensation depends on whether the relationship was “marriage-like” such that the partners were effectively “spouses” (based on the length of the relationship, whether the relationship was continuing at the time of death, and a number of other criteria). Vancouver estate law also offers another remedy by way of what is known as an action for unjust enrichment, which has different criteria and does not require the partner bringing the claim to have been a “spouse” of the deceased. This article will provide an overview of each of these types of claims.

Were the partners “spouses” as defined by the law?

Our Vancouver estate lawyers have recently discussed several types of claims brought by common-law partners. As noted above, Vancouver estate law claims by common-law partners are typically governed by the question of whether the surviving partner meets the definition of “spouse” as defined in the legislation and interpreted by the BC courts. For example:

  • Challenging an unfair will: A surviving spouse can bring an application to vary the will of the deceased partner if it is inadequate or unfair.  For this type of claim, “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”).
  • Bringing a claim where the partner died without a will: Under WESA, a spouse (whether legally married or common-law) can bring a claim and is generally first in line to inherit where the other spouse has died without a will in BC (known as dying “intestate”).
  • Seeking compensation from someone who caused the partner’s death: a married or common-law spouse can claim for compensation under the Family Compensation Act, RSBC 1996, c. 126 for damages if the death of a person is caused by wrongful act, neglect or default of another person.

Another option: Action for unjust enrichment

An action for unjust enrichment arises when three elements are satisfied:

  1. an enrichment;
  2. a corresponding deprivation; and
  3. the absence of a juristic reason for the enrichment.

The purpose of an unjust enrichment claim is to repay or reverse the benefit. If the three elements are established, the claimant may be entitled to either a monetary payment or an entitlement to property. An unjust enrichment claim can be brought against the partner’s estate or while the other partner is still alive (for example, on breakdown of a common-law relationship).

Don’t need to be “spouses”, but nature of relationship important

The test for determining whether, in a particular set of circumstances, an unjust enrichment has occurred is the same when the circumstances arise between strangers as when they do between common-law spouses (for example, see here for our discussion of an action for unjust enrichment between joint tenants of a property who happened to be father and son). However, the nature of the relationship between the parties is an important factor to be taken into consideration in applying the test. The decision of the BC court in Harris v. Wille Estate, 2001 BCSC 143 demonstrates the analysis in the context of a long-term relationship.

Harris v. Wille Estate: Unjust enrichment action against long-term partner’s estate

When Franz Wille died in 1998 the whole of his estate passed under his will to his three adult daughters. At the time of his death, Mr. Wille had been in a thirteen-year long relationship with Edna Harris. Throughout their “very long courtship” they kept separate residences, did not intermingle their finances, and did not view themselves as common-law spouses (as evidenced, for example, by their tax returns). Ms. Harris learned during Mr. Wille’s lifetime that she was not provided for in his will. Nevertheless, when he died, she brought an action for unjust enrichment against his estate. She sought a monetary payment on the basis that their relationship was a common-law marriage in which the she effectively occupied a role as a “traditional” wife (e.g., she prepared the deceased’s meals, cleaned his home, did his laundry and other household chores, and helped improve his property), all without compensation.

Vancouver estate lawyers discuss why claim was denied in Harris v. Wille Estate

The unjust enrichment claim was denied in Harris v. Wille Estate. In reaching that conclusion, the court examined the level of mutual commitments that the partners wanted and had made to each other at the time of Mr. Wille’s death. Absent in this case from what the authorities view as the characteristics of a common-law relationship or marriage were the elements of economic interdependence, the sharing of and commitment to a common principal residence, and the general recognition starting with the two of them and extending to the broader community that they were a family unit. The evidence clearly established that Mr. Wille and Ms. Harris never shared financial resources fully, never held any real property jointly, and desired their independence from each other. They did not refer to each other as husband and wife and did not consider themselves to be so. Judge Parrett said at para. 63: “the court should be very slow to impose on parties commitments which by their conduct they have clearly not made.”

In the circumstances of this case, it was also very clear that Ms. Harris received substantial benefits during the relationship (such as a car, improvements to the home she owned, and spending money, all provided for by the deceased) which satisfied the court that in this case there was neither an enrichment of the deceased nor a deprivation on the part of the surviving partner.

Vancouver Estate Law: The take home point on claims by a common-law partner

There are a number of avenues by which a common-law partner can pursue remedy on death of their partner, including challenging a will that is unfair or excludes them, an application for inheritance if the partner died without leaving a will (i.e., intestate), a claim for damages under the Family Compensation Act for compensation from a person who caused the death, or an unjust enrichment claim. Whether the common-law partner is entitled to remedy will depend on the nature of the relationship between the parties. The courts will be very slow to impose on parties commitments which by their conduct they have clearly not made. For advice on which type of claim you may be entitled to bring, contact one of Onyx Law Group’s team of Vancouver estate lawyers at (604) 900-2538.


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