In a recent British Columbia judgment, the court dismissed a testator’s second wife’s claims against his estate due, in part, to the couple’s lengthy separation prior to his death.

Testator Excludes Second Wife from Will

The testator and his first wife had two children together, who are now adults. The testator and his first wife owned a property as joint tenants. The first wife died in 1994. Thereafter, by right of survivorship, the testator became the sole owner of the property. The testator married a second wife in 1995.

On July 17, 1995, the testator made a will, dividing his estate into three equal parts to be given to the second wife and to each of his children for “[their] use absolutely”.

However, on August 26, 1996, the testator made a second will, revoking all former wills, appointing his two children as the joint executors and trustees of his estate, and leaving his entire estate to them and nothing to the second wife. In fact, his will included the following clause:

“I am giving nothing to [the second wife] whom I married on May 30, 1995, as although we were married, she refused to consummate our marriage or live with me as husband and wife and on March 1, 1996, she left me and returned to Taiwan, China and has not returned. I believe that she married me for the sole purpose of facilitating her entry into Canada as a landed immigrant. She has never and refused to consummate our marriage and we have at no time lived together as husband and wife relationship.”

The next day, on August 27, 1996, the testator filed a petition for divorce alleging a breakdown of his marriage to the second wife. On April 3, 1997, however, he filed a notice of discontinuance in the divorce proceedings, citing a “reconciliation of the spouses”, although the wife moved out in 1998.

In or about 2010, the testator was diagnosed with pancreatic cancer and his daughter became his primary caregiver.

On February 14, 2014, the testator made a transfer, adding his children as joint tenants on title to the property.

The testator died on July 21, 2014, at the age of 84.

At the time of his death, the second wife had been living in Taiwan. She had been unaware that he was terminally ill, had not been involved in his palliative care, and had not known that he had died.

In April 2015, the testator’s son transferred his one-half interest in the property to the daughter for $500,000.

On October 30, 2015, the second wife filed a notice of civil claim initiating an action and a certificate of pending litigation on the property.

However, the daughter sold the property to a third party in April 2018 for $1.1 million, which was paid into a trust account.

The subsequent dispute before the court stemmed from the testator’s gratuitous transfer of joint tenancy interests in the property to his children.

The children claimed that the testator had intended the transfer to be a gift, that his relationship with the second wife had ended many years before his death, and that their marriage was a sham.

The second wife claimed she had been the testator’s wife for 19 years, that he had made inadequate provision for her in his will, and that the transfer gave rise to the presumption of a resulting trust in her favour. She advanced an unjust enrichment claim and sought to vary the testator’s will pursuant to the Wills, Estates and Succession Act (“WESA”).

Court Rules Against the Second Wife 

At the outset, the court observed that the second wife and the testator had not lived together for more than eight years before he died, and were living completely separate and apart for more than three years before he died. The court also accepted the evidence that they had never consummated the marriage. It then stated:

“The cumulative effect of the will, the transfer, the [second wife]’s extended absence from the property for many years before the [testator]’s death, her full­time residence outside Canada for more than three years before his death, her ignorance of his terminal illness, their lack of contact immediately before his death, and the fact that he died without her knowledge, persuade me on a balance of probabilities that he and the [the second wife] were estranged.”

The court therefore found that the testator had in fact intended, at the time of the transfer, to gift the property to his children. The second wife’s claim for a resulting trust was dismissed.

Turning to the question of whether the testator had failed to satisfy his legal and moral obligations to provide for the second wife as his married spouse in the will, the court first had to determine whether the second wife met the definition of “spouse” under the WESA.

The court explained that under the WESA, a separated spouse no longer qualifies as a “spouse” and therefore has no variation rights.

After reviewing the evidence, the court concluded that the second wife did not meet the definition of spouse and therefore had no status to vary the testator’s will.

As a result, the court found in favour of the children and dismissed the second wife’s claims.

Get Advice  

DBH Law recognizes that there continues to be a concern in Alberta about the spread of COVID-19. We have implemented several measures to reduce the risk and impact to our employees, clients and the community-at-large.

Please be aware that we are prepared to initiate business continuity protocol for remote work and communications. It is our priority to ensure business continuity for our clients while ensuring the safety of our people. We recognize that the outbreak of COVID-19 is an unprecedented situation globally and we wish to assure you DBH Law is equipped and prepared to maintain and continue business services to our clients during this pandemic.

The highly-experienced and strategic Calgary estate lawyers at DBH Law can help you draft or update your will to reflect the needs of your family and your estate, no matter its size or complexity. Our responsive and concise approach to our work makes the process of will and estate planning easy for our clients.

We take pride in the relationships we have built with our clients, and the opportunities we have to represent their legal needs as they grow and evolve. We understand your need to provide for your family and loved ones while also minimizing the taxation and chances of litigation your estate may face. We can be reached by phone at 403.252.9937 or online and look forward to the chance to learn about what is important to you, and how we can help you achieve that.