Spouses And Partners FAQ

  • The wife of the deceased spent the money before the testator died - can anything be done?

    • Probably not. How one spouse spends their relatively modest income will not be considered in a wills variation action.

    In this case the second wife was the sole beneficiary of the estate. She said that the testator's long illness had used up the estate. The only asset of significance was the family home, which passed to her outside the estate because it was held in joint tenancy.
    A daughter from the first marriage sued, claiming that there should be lots of money in the estate. She claimed that because the deceased had been disabled by his stroke, the second wife was in a fiduciary position and had a duty to account for the inheritance and pension income received by the deceased over the years.
    The judge rejected this and said it was fundamentally misconceived as part of an action to vary a will, which deals with the distribution of estates that actually exist at the time of death. However, he did state that this claim might work in a different kind of action.

  • When will a common law spouse inherit the estate?

    • If there is a will it governs, although a common law spouse may apply for variation if the bequest is not big enough
    • If there is no will, a common law spouse will inherit if she can prove they lived together in a marriage-like relationship for at least two years before the death

    In Souraya v. Kinch the girlfriend of the deceased claimed she was a common law spouse. The judge said that the test focussed on the intention of the parties to live in a marriage-like relationship, i.e. a relationship of psychological and emotional union that one associates with marriage. The court will consider factors like:

    • Shelter - the sleeping arrangements, whether they lived under one roof, and if anybody else lived there?
    • Sexual and personal behaviour - did they have sexual relations, were they faithful, what were their feeling towards each other, did they communicate on a personal level, did they eat together, did they assist each other with problems or during illness, did they buy gifts for each other?
    • Services - what did they do for meal preparation, washing/mending clothes, shopping, household maintenance or other domestic services?
    • Social - did they participate together/separately in neighbourhood and community activities, what was their relationship and conduct towards members of the other's family, and how did those families treat them?
    • Societal - what was the attitude and conduct of the community towards each of them and as a couple?
    • Economic support - what was the arrangement regarding the necessaries of life, the acquisition and ownership of property?
    • Children - what was their attitude and conduct concerning children?

    However, none of these factors is determinative. Each case is unique.
    In this case, the judge said that the girlfriend was not a common law spouse. They had a warm and loving relationship and lived together, for the most part, for the last two years of the boyfriend's life. However, cohabitation is not enough. He had a separate residence with a separate family and personal life. They shared no financial commitments. They did not express any private or public personal commitments to each other. They lacked a long-term commitment to each other.

  • What is an adequate bequest for a common law spouse?

    • It depends on the circumstances of the testator, the spouse, and the children (if any).
    • The starting point is to consider what the testator's legal obligations are under the family laws relating to spousal support and the division of family assets.
    • After the legal obligations are considered, the testator's moral obligation to the common law spouse may result in an increase in the size of the gift.

    Unless the parties signed a cohabitation agreement, the testator's legal obligation to a common law spouse is generally limited to spousal support. However, the testator may have a strong moral obligation to the surviving spouse, requiring a large bequest.
    In Hall v. Korejwo, the testator and his common law wife lived together for 4 years. He made a will that left 87% of his estate to his wife and 2% to a son. The son had been estranged from his father for many years, but had reconciled 1 ½ years before the testator died. The son sued, claiming his share was too small.
    The Court of Appeal decided that the son should get 13% of the estate, and the wife 76%. The testator had a substantial moral obligation to his wife. She had been a faithful and loving companion and had nursed him through his final illness. He had promised to take care of her. The only way of honouring his legal and moral obligations to her was to give her the bulk of the estate ($335,000).
    However, the gift of 2% to the son was too small a bequest. The son had some physical disabilities, had a limited ability to work, and had limited assets. This created a moral obligation to provide for the son. A gift of $60,000 was adequate to meet the moral obligation.

  • Will a life-estate satisfy the testator's duty towards his spouse?

    • Generally not. During their lives, spouses are usually entitled to 50% of the family assets. In most cases the surviving spouse will be entitled to at least half as a direct bequest.

    In Erlichman v. Erlichman Estate the couple enjoyed a 53 years marriage. They started with nothing, and built a $2 million estate together. All of the assets were held in the husband's name alone. Shortly before his death the husband changed his will. He gave half of his estate to his son, and put the other half in trust. His widow was to get the income from the trust, and after she died the money would go to her son's children.
    The Court of Appeal said that the trust did not satisfy the husband's legal obligations to his wife. Had they divorced each spouse would have been entitled to half of the assets. On death the surviving spouse was entitled to at least that much. Had the estate been smaller, the surviving spouse could be entitled to more than half.
    By giving the widow half of the estate outright, she would be independent. She would be able to spend her money as she chose, without her trustee's permission. She would be able to bequeath it on her death as she saw fit, not as her husband saw fit.

  • Will a pre-nuptial agreement affect the outcome of a Wills Variation action?

    • In many cases, yes
    • Pre-nuptial agreements made before second marriages, with the objective of having the spouses' separate estates go to their own children, will usually defeat a surviving spouse's claim

    In Howard v. Howard Estate the husband and wife married when he was 67 and she was 65. Their assets had been acquired before the marriage, and they entered into a pre-nuptial agreement that on death each of their estates would go to their own children from their previous marriages. Five years later the husband died. The wife challenged the will, which left her nothing.
    The trial judge upheld the will. He noted a dozen important factors, including that the wife was and is financially independent, her estate was larger than his, if they had divorced she would not have received property or spousal support from him, she had not contributed to his estate, it was not a long marriage, there was little merger of their lives in that they had maintained separate finances and even houses, living alone in separate towns for good periods of time, a good part of his estate had come from his first wife, and both wished their estate to go to their own children.
    The judge said that it was not just and equitable that the wife sought to vary the will when she was party to the prenuptial agreement and her will provided that if she died first, his children would receive nothing. There was nothing unfair in the pre-nuptial agreement.
    The Court of Appeal said that in many cases a court will make an award for the surviving spouse, if only to provide some additional income to the survivor during her life. However, this was an unusual case for several reasons - the late age at which the parties married and the resulting shortness of the marriage; the fact that they did not become an economic unit and enter into the relationship of mutual benefit and contribution that usually comes with marriage; the fact that her estate was larger than his by some $60,000; and last, the fact that having signed the agreement and made their wills, neither can have had an expectation that on death the other's estate would "be there" for the survivor. The appeal was dismissed and the wife got nothing.