A British Columbia man died without a will and left behind a wife and two children. Following his death, however, a second wife and her two children came forward claiming part of the man’s estate. A British Columbia court had to determine how to distribute the man’s estate.
Deceased Had Second “Secret” Family
The deceased died unexpectedly on or about March 9, 2017, the victim of a homicide.
The deceased did not leave a will.
At the time of his death, the deceased was married to a wife (the “first wife”), with whom he had two children, born in 2005 and 2006. The deceased and the first wife began living together in 2000 and were married in 2008.
Additionally, at the time of his death, the deceased was also in a long-term relationship with another woman (the “second wife”), with whom he had had a marriage-like relationship and with whom he also had two children, born in 2014 and 2015. The deceased and the second wife had been in a relationship since 2009.
The second wife knew that the deceased was married, but the first wife had no knowledge of his other relationship or family.
The deceased had been able to maintain two separate households because he told his first wife that he was working part of the week on the other side of the city, when he was actually spending time with the second wife. The deceased had told the second wife that he would divorce the first wife, but never did.
The deceased kept up a regular schedule, alternating between the two households.
The deceased had been a member of the Hells Angels and owned numerous properties that were registered in the first wife’s name.
The second wife applied to court, seeking orders that the deceased’s estate consisted of half of the value of the properties held in the first wife’s name. She asserted an interest in it, by way of a resulting trust or a constructive trust based on unjust enrichment of the first wife at the expense of the deceased’s estate or, in the alternative, at the expense of the second wife and her children.
The second wife also sought declarations that she was a spouse of the deceased, as that term is defined in the Wills, Estates and Succession Act (“WESA”), and a declaration that her two minor children were the children of the deceased and were each entitled to a share of his estate as his descendants.
Court Holds That Both Spouses Are Entitled to Half of the Estate
The court began by examining whether the second wife was a “spouse” for the purposes of the WESA. The court explained that the WESAprovides for more than one spousal share in the estate of an intestate under s. 22, which reads:
Two or more spouses
22 (1) If 2 or more persons are entitled to a spousal share of an intestate estate, they share the spousal share in the portions to which they agree, or if they cannot agree, as determined by the court.
(2) If 2 or more persons are entitled to apply or have priority as a spouse under this Act in respect of an intestate estate, they may agree on who is to apply or who is to have priority, but if they do not, the court may make the decision.
After reviewing relevant case law and legislative debates, the court stated:
“[I]t appears to have been the considered intention of the Legislature to continue to provide for individuals in a marriage-like relationship with an individual who was still married to someone else at the time of death under the WESA.”
Based on the fact that the second wife had been in a marriage-like relationship with the deceased when he passed away, the court concluded that the wife was entitled to a declaration that she was a spouse of the deceased as the term is defined in the WESA.
The court further declared that the second wife’s children were the children of the deceased and were therefore entitled to a share of his estate as his descendants.
The court further found that the deceased had contributed $150,000 towards the properties that were registered in the first wife’s name, which resulted in unjust enrichment to the first wife. Finding that there was no juristic reason for the first wife to retain the benefit of the deceased’s contributions, the court awarded the deceased’s estate $150,000 from the first wife.
In the result, the court ordered that the deceased’s estate was to be divided equally between the two surviving spouses.
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.