Kirkwood v. MacMillan

Were two people who were in a long term exclusive romantic relationship, but had not ever lived together, nor shared their money, living in a marriage-like relationship? This was the issue in the recent Supreme Court of British Columbia case Kirkwood v. MacMillan, 2008 BCSC 91.

Donald Kirkwood died without a will in October, 2005. He was not married, and he had no children. He had been in an exclusive relationship with Bonnie MacMillan for several years.

If Ms. MacMillan “lived and co-habited” with Donald Kirkwood “in a marriage-like relationship” for at least two years immediately before his death, she would be entitled as his common law spouse to his estate under Part 10 of the Estate Administration Act, RSBC 1996, c. 122.

If not, Donald Kirkwood’s estate would go to his brother, Kenneth Kirkwood.

Mr. Justice Bernard held that Ms. MacMillan and Mr. Donald Kirkwood did not live in a marriage-like relationship. He found there to be an “absence of economic dependence, of a sharing and a commitment to a common principal residence, and of a general recognition that the defendant [Ms. MacMillan] and the deceased were part of a family unit.” These findings were fatal to Ms. MacMillan’s claim.

Mr. Justice Bernard, quoting Mr. Justice Parrett in Harris v. Wille Estate, 2001 BCSC 143, said “the court should be very slow to impose on parties commitments which by their conduct they have clearly not made.”

Donald Kirkwood’s estate will go to his brother.