Wills Variation Act: Moral Claims of a Common Law Spouse

In assessing a spouse's moral obligations under the Wills Variation Act in British Columbia it doesn’t make much difference whether the claimant was legally married to the deceased or living in a common law relationship with the deceased. That is the inference I draw from the British Columbia Court of Appeal decision in Picketts v. Hall (Estate), 2009 BCCA 329, released last Thursday, July 16, 2009.

In his will, Coleman Hall left his common-law spouse, Helen Picketts, his residence, $2000 per month indexed for inflation, the use of his condominium in Hawaii for up to three months of the year, and, on the sale of the condominium in Hawaii, 10% of the sale proceeds up to $75,000 USD. He left the residue of his estate to his two sons, both of whom were financially well off.

When he died at age 91, his estate was worth somewhere in the neighbourhood of $18 million. Ms. Picketts was 75, and they had lived together in a marriage-like relationship for 21 years. Mr. Hall had at one point said he would marry Ms. Picketts, but they never did get married.

The case went to trial in the Supreme Court of British Columbia. The trial judge awarded Ms. Picketts an additional $405,000 out of Mr. Hall’s estate to make renovations to her residence. The court also increased the monthly payments to the equivalent of $175,000 per year indexed for inflation.

The trial judge drew a distinction between the claims of a married spouse to those of a spouse living in a marriage-like relationship. (See my previous post on this case).

Ms. Picketts appealed to the Court of Appeal.

The Court of Appeal allowed the appeal and awarded Mrs. Picketts a lump sum of $5 million in addition to the gifts in the will, but eliminated the support payments.

Mr. Justice Low in his reasons for judgment in the Court of Appeal considered the legal and moral obligations of the deceased as set out in the Supreme Court of Canada decision of Tataryn v. Tataryn, [1994] 2 S.C.R. 807. Marriage is significant to the assessment of the legal obligations. In this case Mr. Hall did not have the same legal obligations to sharing the family assets under the Family Relations Act, with its presumptive equal share, as he would have if they had been married. Ms. Picketts’ legal claim was limited to support. Any unjust enrichment claim she might have had was satisfied by the gift of the house.

But, Ms. Picketts’ moral claim was not affected by their marital status. Mr. Justice Low wrote at paragraph 40:

It is an important consideration that the Act itself makes no distinction between the two definitions of spouse. The distinction between them is to be found in the interpretation of the Act in Tataryn to which I shall presently come. At this stage of the discussion, however, I would say that, depending on the circumstances of the particular case, a married spouse might have less of a claim to an interest in his or her spouse’s estate than a marriage-like spouse might have in his or her spouse’s estate. Similarly, a marriage-like spouse might have a better claim for receipt of a lump-sum remedy than a married spouse might have.

Mr. Justice Low also noted that Ms. Picketts would have had the same rights as a legally married spouse to a share of the estate if Mr. Hall had died without a will. He wrote at paragraphs 55 and 56:

[55] In the unlikely event that Mr. Hall had died intestate, Ms. Picketts would have received one-third of the entire estate. This is because the definition of “common law spouse” in the Estate Administration Act was amended by the Definition of Spouse Amendment Act, S.B.C. 1999, c. 29, to mean, inter alia, “a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between two persons of the same gender, for a period of at least 2 years immediately before the other person’s death”. This is essentially the same definition as the definition of “spouse” in the Wills Variation Act. The two definitions became law on the same date.

[56] Although the intestacy provisions of the Estate Administration Act do not directly affect the legal considerations under Tataryn, it is significant that the Legislature chose to amend both statutes at the same time. This can be seen as a dovetailing of the two statutes to reflect the social norms of the day and, to repeat the quote from Tataryn at p. 822, to “reflect a clear and unequivocal social expectation, expressed through society’s elected representatives ...”

In arriving at the $5 million lump sum award, the Court of Appeal considered the length of the relationship, the sacrifices Ms. Picketts made in her own career, and the care she provided to Mr. Hall in the last years of his life.

This case is in my view the most significant case to date on the issue of the entitlement of a common law spouse in a Wills Variation Act claim. There remains some distinction between married and common-law spouses in how the courts may assess the deceased’s legal obligations. But in practice, where a common law spouse has a strong moral claim based on the nature and extent of the relationship, the difference may be more theoretical than real when the court determines the amount of the award. I would argue that the difference in treatment between married and common law spouses should be even smaller when the estate is more modest than it was in Picketts v. Hall (Estate).