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Wills Variation Claim: Spouse Gets Larger Inheritance Despite Lack of Need


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  • Wills Variation Claim: Spouse Gets Larger Inheritance Despite Lack of Need

Can a widow bring a successful wills variation claim on the basis that her deceased spouse did not provide her with “enough”, despite the fact that she lives comfortably and does not have financial need for a larger inheritance? The surviving spouse in Mars v. Bain, 2011 BCSC 1714 brought a wills variation claim arguing that her deceased husband owed a legal and moral obligation to better provide for her in his will. This case is interesting as the widow described her current life as comfortable and indicated that if she received an inheritance from her husband’s estate, she would probably give it all away.

The court agreed with the widow and varied the will so that she received $200,000 instead of the $50,000 inheritance set out in her husband’s will. The size of the estate and the nature and length of the spousal relationship were the primary factors in the court’s decision.

Late-in-life relationship

Mr. Bain died in 2008 at the age of 84 leaving an estate valued at $1.5 million.

He was in a common law relationship with Ms. Mars for the nine years prior to his death. While they were not legally married, she was his spouse for the purposes of a wills variation claim. She did not contribute financially to the accumulation of his estate, but she was a devoted spouse and took care of him in his later years.

Adult son of the deceased

Mr. Bain had only one child, a son named David from his first marriage. Ms. Mars did not have children. David was 62 when his father died. He had no income and lived on money from his father’s estate.

The estate

Mr. Bain’s largest assets at the time of his death were a $175,000 bank account and two properties in Vancouver that he bought before he met Ms. Mars: a home on Odlum Street valued at $700,000 and a home on MacLean Drive valued at $545,000. Ms. Mars and Mr. Bain lived together at the Odlum Street home until his death and also rented out units in the home. David lived at the McLean Drive home and collected rents from that property as well. Both properties were in disrepair.

The contested inheritance

Mr. Bain’s made a will in 2005 which left Ms. Mars $50,000 and a life estate in the Odlum Street property. The rest of the estate was left to David. The owner of a life estate, called the life tenant, has the right to occupy, use, and deal with real property for his or her lifetime. When the life tenant dies, the remaining interest in the property then passes to the next person. So when Ms. Mars died, the Odlum Street property would go to David.

So, by the terms of the will, Ms. Mars received just 4% of her spouse’s estate.

Legal obligation to provide for spouse

The evidence was that Ms. Mars did not need money to meet her ongoing living expenses or to maintain the standard of living she enjoyed before Mr. Bain died. After Mr. Bain’s death, she received the rent from the Odlum Street property and a $1,000 per month pension. She described her current life as comfortable and indicated that if she received the $50,000 bequest from Mr. Bain’s estate, she would probably give it all away. In light of that evidence, the court held that the $50,000 met Mr. Bain’s legal obligation to provide in his will for his spouse.

Moral obligation to provide for spouse

But that did not end the matter. As I discussed in a previous post, an inheritance that provides a surviving spouse with the standard of living enjoyed while the will-maker was alive may not be enough. The moral obligation to a spouse may outweigh the legal obligation to provide maintenance for basic needs. The size of the estate, the nature and duration of the spousal relationship and the surviving spouse’s dedication to the will-maker’s care and support are factors that strengthen a moral claim.

Will found to not meet moral obligation to surviving spouse

The court decided that a person in Mr. Bain’s circumstances should have acted differently. The inheritance he left for Ms. Mars was inadequate in view of the size of the estate, the nature and duration of their relationship and the fact that she was a dedicated spouse who provided care and support during Mr. Bain’s later years. While Ms. Mars did not contribute to the acquisition of Mr. Bain’s assets and there was no evidence that she had an expectation of sharing Mr. Bain’s properties, a sensible person would have considered it his moral obligation to provide additional money to Ms. Mars.

The moral obligation to Ms. Mars would be met by an inheritance of $200,000 in addition to the life estate in the Odlum Street house, and varied the will accordingly. Daniel received the residue of his father’s estate after the $200,000 went to Ms. Mars.

Take home point on a wills variation claim by a spouse for larger inheritance

The moral obligation to a spouse may outweigh the legal obligation to provide maintenance for basic needs. The size of the estate, the nature and duration of the spousal relationship and the surviving spouse’s dedication to her husband’s care and support strengthened the widow’s moral claim in this case. She was entitled to a variation of the will in her favour, despite the fact that she did not have a financial need for a greater inheritance.

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