Determining who is a testator’s spouse is not as straightforward as it might seem at first glance.
In a recent B.C. case, a Chinese woman failed in an attempt to convince a judge that she was the spouse of a murdered man who died with no will, no wife, and left behind a $21-million estate.
The woman was one of five with children fathered by the dead man between 2008 and 2015. Although the pair never married, they lived together for periods in his parents’ house in China, and she remained in the home after the man left for Canada.
Estates law in B.C. makes little distinction between married spouses and common-law ones, which meant that the mother only had to prove that the pair had been in a “marriage-like relationship” for at least two years that was not terminated before the man’s death, in order to be considered his spouse. That would clear the way for her to inherit at least half of his estate on an intestacy, with the rest to be split between his five children.
However, B.C.’s Court of Appeal upheld a trial judge’s ruling that the deceased had terminated the relationship at least a year before he was killed by a former business partner during a dispute at his West Vancouver mansion.
Despite evidence that the couple referred to each other as “husband” and “wife,” the judge found that he used the same terms with other women, concluding that he lived a “playboy” lifestyle, having no intention of living in a marriage-like relationship with her or any other woman.
The legal situation is different in Ontario, but it’s just as important to clarify your relationships and detail your intentions in a will.
Common-law spouses here are frequently placed in a tricky position following the death of their partner – especially if they died without a will – since our estates law offers them no automatic entitlements, a fact that comes as surprise to many.
Instead, common-law spouses must rely on Ontario’s Succession Law Reform Act, which offers dependants of the deceased a route to claim against the estate if they are inadequately provided for in the will.
Depending on the case, a first or second spouse could qualify as a dependant, as well as children from different relationships, or even a new partner’s children from a previous relationship.
In one recent decision, Ontario’s Court of Appeal appeared to extend the definition of a common-law spouse further than ever before, attaching the label to a couple who had never married and maintained separate residences throughout their 14-year relationship.
Separation agreements or domestic contracts signed by the testator will often offer clarity about who they have a duty to account for in their will, but not all relationships are clear-cut, especially if they ended bitterly.
Whatever your individual circumstances, it’s important to find an experienced professional who can ask the right questions about your spousal situation, and ensure that everyone who needs to be is accounted for.
Disclaimer: The content on this website is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this website are advised to seek specific legal advice by contacting members of Laredo Law (or their own legal counsel) regarding any specific legal issues.
