Many of the cases considering claims by spouses to vary a will arise in the context of second marriages. The deceased spouse leaves all or a substantial portion of his or her assets to children from a previous marriage. The surviving spouse then makes application to vary the will on the basis that the deceased did not make adequate provision for the surviving spouse.
In Saugestad v. Saugestad, 2006 BCSC 1839, released on December 13, 2006, Madam Justice Russell considered a claim brought by a second wife to vary her husband's will, in which he left his estate to his two adult sons. Both sons were independent, and in their early thirties.
Ragnar Saugestad was 63 years old when he passed away. His first wife had died in 1989. He married the plaintiff, Joan Saugestad, in 1992. At the time of their marriage, he had substantial assets, while Joan Saugestad's assets were more modest, worth about $200,000.
Although Mr. Saugestad's will did not make provision for Mrs. Saugestad, their principal residence, a condominium worth about $381,000, passed to her by right of survivorship as the surviving joint tenant. Additionally, she received RRSPs as a designated beneficiary, and various joint accounts and cars. She also held a half-interest in a condominium at Whistler and in a rental condominium in Vancouver, which the couple owned as tenants in common. (His half-interest in the Whistler and Rental condominiums fell into his estate.)
Mr. Saugestad also owned a condominium in Florida, shares of a holding company holding about a million dollars of investments jointly with his two sons, a $125,000 bank account, and a $374,000 inheritance from his mother.
Madam Justice Russell first considered what Mrs. Saugestad would have been entitled to under British Columbia's Family Relations Act if the marriage had broken down in order to determine Mr. Saugestad's legal obligations to Mrs. Saugestad. She held that Mrs. Saugestad would have been entitled to about $909,000, and Mr. Saugestad would have been entitled to about $2,063,000. Madam Justice Russell thought it unlikely that Mrs. Saugestad would have been entitled to compensatory support if the relationship had broken down.
On Mr. Saugestad's death, Mrs. Saugestad had assets, including her own, and those she received by surviviorship or as a designated beneficiary from her husband, of $958,000. Accordingly, Mr. Saugestad met his legal obligations.
Madam Justice Russell considered Mr. Saugestad's moral obligations to Mrs. Saugestad, but did not consider that those obligations were as strong as in those cases where a couple has had a longer term marriage or relationship and accumulated most of the assets together. She wrote at paragraph 123,
...this is a second marriage of moderate length; the testator has children from a previous marriage and much of his estate was accumulated during that first marriage; each party has their own assets and is largely financially independent; and the testator made clear his intention that he wanted his estate to benefit his children, and not the plaintiff's heirs. Society's reasonable expectations of what a judicious husband and father would do in such circumstances may vary much more widely than they might in the case of a life-long marriage in which neither party entered the relationship with significant assets, as was the case in Tataryn.
Madam Justice Russell, did vary the will in Mrs. Saugestad's favour, but not by very much. She varied the will to provide Mrs. Saugestad with $29,000 out of the estate, offsetting an amount that Mrs. Saugestad owed the estate, and to provide Mrs. Saugestad with a life estate in her husband's half interest in the rental condominium. Mrs. Saugestad would receive all of the rents generated by the rental condominium during her lifetime. On Mrs. Saugestad's death, Mr. Saugestad's sons would then be entitled to Mr. Saugestad's half-interest in the rental condominium.