Death is Not the End – Part 3 by Jason Filek

Litigation over an estate can arise from an intestate deceased

In my two previous articles, I discussed two main areas where litigation over an estate can arise, namely a wills variation action, and a joint tenancy dispute. In this article, I will discuss an intestate deceased, which is another main area where litigation over an estate can arise.

When an individual dies without a will, we call that person an intestate deceased, or we say that they died intestate. When an individual dies without a will, the assets of their estate will be distributed according to the Estate Administration Act of British Columbia. The wishes or intentions of the deceased are not taken into account, and the estate is distributed according to a formula as set out in the Estate Administration Act.

For example, if the deceased leaves behind a spouse and no children, the spouse will receive the entirety of the estate. If there are children, the spouse will receive the first $65,000.00, household furnishings and a life estate in the matrimonial home. If there is one child, whatever is left over is divided equally between the spouse and the child. If there is more than one child, the spouse receives one-third of the remaining amount, and the children split the remaining two-thirds.

As discussed in Death is not the End – Part 1, if there is a will, a spouse or child may apply to the Court to vary the terms of the will. However, the Wills Variation Act is not applicable in the situation of an intestate deceased, and the estate will be distributed as set out in the Estate Administration Act.

Under the Estate Administration Act, a spouse is defined as including a common-law spouse. A common-law spouse is defined as meaning either:

a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common-law; or
b) a person who has lived or cohabitated with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least two years immediately prior to the other person’s death.

Whether or not an individual is a common-law spouse of the deceased is one area where litigation can arise. If an individual claims to be the common-law spouse of a deceased, that assertion may be challenged by the children of the deceased. For example, a deceased may, in their later years, have been cohabitating with an individual, and this individual may not have been well known by the deceased’s children. This situation could easily arise where the children have become estranged from the deceased, or in situations where the children lived some distance from the deceased and did not visit. The question for the court to decide in these circumstances is whether or not the deceased and the alleged common-law spouse were living together in a marriage-like relationship. It should be pointed out that simply living together is not necessarily enough to constitute a common-law marriage. The couple must be living together in a marriage-like relationship.

The decision of the British Columbia Court of Appeal in Gostlin v. Kergin, is often cited as authority when the issue of whether a couple is living in a marriage-like relationship arises. In that case, the court stated the following:

“…I would ask whether the unmarried couple’s relationship was like the relationship of the married couple and that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of Section 57 [of the Family Relations Act]. If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.”

In addition, the Court went on to consider that in the particular circumstances of some cases, the answer to the above question may be elusive. If so, then other indicators may be considered. For example, the court can consider whether or not the couple referred to themselves as husband and wife or as spouses, whether or not they shared the legal rights to their living accommodations, whether or not they shared their finances and bank accounts, and whether or not they shared their vacations. Basically, the court will consider whether or not the couple shared their lives. Of course, each case may have its own unique circumstances which may tend to prove or disprove whether or not the couple was living in a marriage-like relationship.

In conclusion, it is likely that the courts will be asked to deal with more and more of these disputes, as it appears to be more common for individuals to cohabitate as opposed to getting married. The courts will look at each case on its own facts, and will weigh the evidence to decide whether or not the couple was cohabitating in a marriage-like relationship. In other words, in these cases the courts are asked to determine whether or not the couple was sharing their lives as husband and wife.

Of course, the simplest way to avoid this potential area of litigation is to ensure that you have a current and valid will in place!

In the next edition of the Bailiwick, I will discuss challenges to the validity of a will, which is the fourth main area where litigation over an estate can arise.