There are many factors that the court considers when a surviving spouse brings a wills variation application to change the will after the death of a spouse. In some cases, the court may vary the will to provide the surviving spouse with a larger share, even where the surviving spouse already has enough to live comfortably. But there is no automatic entitlement of a spouse to inherit from an estate – for example, if the marriage was short, or if the surviving spouse has already received assets outside the estate.
The decision of the Court of Appeal in Saugestad v. Saugestad, 2008 BCCA 38 is helpful because it discusses a number of factors the court considers when asked to change a will after the death of a spouse, including:
Ragnar and Joan Saugestad had been married for about 10 years when he died at the age of 63. It was the second marriage for both. Joan had no children of her own, but Ragnar had two sons, ages 29 and 30, from his first marriage. Ragnar’s first wife (the mother of his children) had died in 1989 after 19 years of marriage. Ragnar had built a large estate during his first marriage.
On Ragnar’s death, Joan received assets outside of Ragnar’s will: she inherited the matrimonial home as surviving joint tenant, and she also received Ragnar’s monthly pension and CPP survivor’s benefit. Ragnar’s will left Joan several motor vehicles, some furniture and artwork, RRSPs, and approximately $28,000 in various bank accounts. The will stated that the rest of Ragnar’s multi-million dollar estate was to be shared equally between his two adult sons. A clause in Ragnar’s will explained that he purposefully chose to not make Joan a beneficiary of his will. Joan was aware of Ragnar’s will and his wish that his sons receive the majority of his estate.
Despite being aware of Ragnar’s wish that his sons receive the majority of his estate, Joan brought a wills variation claim to change the will after the death of her spouse. She asked for 80 per cent of her husband’s estate. Her wills variation claim was allowed, but she received a much more modest variation of the will than she asked for: at trial, the will was varied to provide her with an additional life interest in half of an investment condominium in Florida, and on appeal, the will was varied further to convert the life interest into outright ownership of the half of the investment condominium. The rest of Ragnar’s multi-million dollar estate went to his sons.
Here are the key factors that impacted the court’s decision to change the will, but only modestly, in the widow’s favour:
There are many factors that the court considers when a surviving spouse brings a wills variation application to change a will after the death of a spouse, including the respective contributions by each spouse to the accumulation of the estate; the wishes of the will-maker, balanced against the objectives of the wills variation legislation; and the strength of competing claims from children of the will-maker. On that last point, the Saugestad decision makes it clear that there is an increased moral obligation to provide for children of a first marriage where the estate was built during the first marriage and the children of the first marriage have not yet received an inheritance from the estate their parents built. The court presumes that the spouse who died first would have expected the surviving spouse to provide their shared wealth to their children as opposed to the surviving spouse’s new partner.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at