When my clients ask me about what problems might arise with the way they want to distribute their estates, I tell them that it’s often not blood relatives but in-laws that create the problems. A recent judgment of the British Columbia Court of Appeal (Kish v. Sobchak Estate February 12, 2016) demonstrates the truth of this.
Ms. K and Mr. S started “dating” in 1991, when both were in their early 50s. Each had been married before, and each had one adult child.
They both had their own homes, though Mr. S spent a lot of his time at Ms. K’s home. As Ms. K started showing signs of dementia, Mr. S became her caregiver, and to those who knew them, their relationship seemed a loving, romantic one. Mr. S’s stated intentions were that he did not wish to remarry or even be in a common law relationship, but he looked after Ms. K as if she were his spouse.
Unfortunately, in 2013 Mr. S became ill with cancer and died within a few months of his diagnosis. Before he died, he made a new will leaving everything to his daughter. Ms. K also changed her will, leaving everything to her son and grandson. It was clear from both wills that they did not consider each other as spouses, and left their separate estates to their separate families. Mr. S even left a memorandum with his will explaining why he didn’t leave Ms. K anything.
It would therefore likely have been a huge surprise to each of them, when Ms. K’s son sued Mr. S’s estate on behalf of his mother, to find they were, in fact, spouses. The trial judge based her finding on the evidence of their living arrangements and their activities together, in spite of them keeping their assets and financial matters separate.
The trial judge’s decision that Ms. K and Mr. S were spouses when Mr. S. died meant that he should have left her part of his estate. This is where the “in-laws” part of the equation comes in.
Had either Ms. K or Mr. S been asked about why they made their wills the way they did, they would have said “that’s only fair; I’m not married and my daughter/son should get my estate”. If Ms. K had died first, it is extremely unlikely (based on the evidence in the case) that Mr. S would have sued her estate, even though he had been left out of her will. Likewise, had Ms. K been competent, it is doubtful she would have sued on her own behalf.
But what Mr. S and Ms. K failed to anticipate was that Ms. K’s son would be greedy and sue on his mother’s behalf. He, of course, is the one who will benefit from any part of Mr. S’s estate that goes to his mother. She is incompetent and her needs are taken care of by her own resources. Of course, now that Mr. S is gone, he is no longer looking after her and no longer paying the bills, so the son will have to step up. Ms. K also still owns a house which could be sold should she need additional funds. Her son didn’t provide the court with an explanation of why he hadn’t done that when he told the judge Ms K was in need.
Fortunately, the Court of Appeal wasn’t buying the hardship story. The five-judge panel said that it isn’t the intention of the wills variation law to benefit a spouse’s estate, and reduced the amount going from Mr. S’s will to Ms. K to $30,000, down from the $100,000 awarded at trial. Still, in the end, the finding that Ms. K and Mr. S were spouses for purposes of the Wills, Estates and Succession Act stood.
The lesson here is that if you live and behave like spouses, the law will consider you spouses regardless of what your own intentions might be, and you need to arrange your affairs accordingly. You might think your kids are fine with your decisions, and you may be right, but don’t count on the in-laws. I have seen more than one case where a son- or daughter-in-law was the driving force behind a wills variation claim.
If you find yourself in a similar situation, there are steps you can take to ensure that your estate will go where you want it to, in spite of the wills variation provisions of the Wills, Estates and Succession Act. You need to do something more than just make a will leaving out the “spouse”, and it now seems that even a letter explaining why you have left out the “spouse” is not going to be good enough.