The Wills Variaton Act and Unjust Enrichment

In British Columbia, a child or spouse can apply under the Wills Variation Act to vary their parent or spouse’s will if the deceased did not make adequate provision for the child or spouse. The court considers the deceased’s legal obligation to the child or spouse. Then the court considers any moral obligations the deceased may have owed to the claimant.

Sometimes the claimant may also have a claim in unjust enrichment. To succeed the claimant must prove:

1. that claimant enriched (in other words benefited) the deceased;
2. that the claimant suffered a corresponding depravation (gave up something or contributed labour); and
3. that there is no juristic reason for the enrichment (such as a contract or a gift.)

In a Wills Variation Act claim, the court can take into account any unjust enrichment in deciding whether to vary the will in favour of the claimant.

Wilcox v. Wilcox, 2000 BCCA 491, illustrates how unjust enrichment principles dovetail with the Wills Variation Act. The plaintiff was one of Edith Wilcox’s four children. The plaintiff lived with their mother in a house they owned together from 1970 until Edith Wilcox’s death in 1996. The plaintiff and her mother both contributed financially to the house and household expenses, but the court found that the plaintiff contributed more funds over the years. The plaintiff also provided did the household chores and provided personal care and services to their mother after 1989 when their mother became ill. The plaintiff and her mother’s relationship became strained in about 1993. The plaintiff and her mother held title to the house in a joint tenancy until August 1995, when Edith Wilcox unilaterally severed the joint tenancy. Edith Wilcox also made a new will in December 1995, leaving substantially all of her estate to the plaintiff’s three siblings.

After Edith Wilcox’s death, the plaintiff brought a Wills Variation Act claim. The main asset of the estate was Edith Wilcox’s half-interest in the house. At trial, the trial judge held that Edith Wilcox had been unjustly enriched by the plaintiff’s financial contributions and personal care and services. He imposed a constructive trust on Edith Wilcox’s half-interest in the house in favour of the plaintiff. He also awarded the plaintiff insurance monies in respect of some damage to the house and the sum of $6,500.

On appeal, Madam Justice Saunders agreed that Edith Wilcox was unjustly enriched by the plaintiff’s contributions. The plaintiff had an expectation that she would receive her mother’s interest in the house by right of survivorship. But Madam Justice Saunders also said that the unjust enrichment did not entitle the plaintiff to the entire interest in the house. The extent of the unjust enrichment was more limited. After considering the plaintiff’s legal claim in unjust enrichment, Madam Justice Saunders turned to the plaintiff’s moral claims. She found that the plaintiff had a stronger moral claim than her siblings. On the basis of both the plaintiff’s legal and moral claims, Madam Justice Saunders upheld the award of the house and insurance monies to the plaintiff. She did allow the appeal to the extent of eliminating the award of $6,500 to the plaintiff. Instead, the Court of Appeal held that the small amount of cash in the estate would be divided equally among Edith Wilcox’s four children.