MacLean Estate v. Christiansen

As of the date I am writing this post, the law in British Columbia is that if you marry after you make a will, your will is revoked unless there is a declaration in the will that it is made in contemplation of the marriage. This is set out in section 15 of the Wills Act. I expect this rule to change if and when the new Wills, Estates and Succession Act is brought into effect.

What language is required in the will to satisfy the requirement that there is a declaration that the will is made in contemplation of the marriage? In most cases, the declaration is fairly clear. But what if the will does contain an express statement that the will is made in contemplation of marriage, but is made shortly before the marriage, provides substantial benefits to the testator’s fiancée, and refers to her as his spouse?

In a decision released yesterday, MacLean Estate v. Christiansen, 2010 BCCA 374, the British Columbia Court of Appeal took a flexible approach to the requirement of a declaration in the will that it is made in contemplation of marriage. In that case, the testator, Gordon MacLean, made a will on June 22, 2007, about a month and a half before his marriage to Karen Christiansen on August 11, 2007. He made the will after their engagement, and referred to Ms. Christiansen as his “spouse.” In the will, he created a spousal trust for her. An express statement that the will was made in contemplation of the marriage was inadvertently left out.

The Supreme Court of British Columbia held that the will did not meet the requirement that there be a declaration in the will that it is made in contemplation of the marriage, and that accordingly, the will was revoked by the marriage.

The Court of Appeal overturned the Supreme Court of British Columbia decision, and held that the will was made in contemplation of the marriage, and was not revoked by the marriage.

Madam Justice Kirkpatrick, writing for the Court of Appeal, held that there need not be a formal declaration in the will to satisfy the requirement if there is a written statement referable to the marriage.

In this case, the references to “my spouse KAREN CHRISTIANSEN,” the creation of a spousal trust in favour of Ms. Christiansen, and the appointment of “Karen” as trustee of the spousal trust were a sufficient written statement, referable to the marriage, for the will to have been made in contemplation of the marriage.

The Court said that the use of the word “spouse” was ambiguous in that it could refer to either a legal spouse or a common law spouse. Madam Justice Kirkpatrick looked outside of the wording of the will, and considered the evidence of the circumstances in which Mr. MacLean made the will to determine whether he intended to refer to Ms. Christiansen as his legal spouse as follows:

[38] The circumstances of the making of the will in this case were summarized in the appellant’s factum:
(a) The Will was made after joint tax and estate planning with Ms. Christiansen.
(b) Both Mr. MacLean and Ms. Christiansen were sophisticated financial professionals.
(c) The Will was executed after the wedding date and arrangements had been set.
(d) The solicitor preparing the Will knew of the wedding; was invited to and attended the wedding reception and advised Mr. MacLean and Ms. Christiansen on honeymoon travel arrangements to Italy.
(e) [The Will] was prepared at a time when Mr. MacLean and Ms. Christiansen were living in a stable, long-term, common-law relationship.
(f) The Will provides for benefits to Ms. Christiansen under a spousal trust.
(g) The Will speaks of Ms. Christiansen as his spouse.
(h) The Will addresses and balances the needs of Ms. Christiansen and of Mr. MacLean's children.
(i) As their wedding date approached in May 2007, Mr. MacLean told Ms. Christiansen that he intended to have a Will and Power of Attorney in place before they were legally married.

[39] When one examines the terms of the will and the circumstances in which it was prepared, there can be no doubt that Mr. MacLean intended that the will would survive his marriage to Ms. Christiansen and provide for her for the remainder of her life. On her death, the one-half of the residue of the spousal trust then remaining would form part of the residue for the benefit of the testator’s children. This was obviously a carefully constructed estate plan. The extrinsic evidence overwhelmingly supports the construction that “spouse” meant Mr. MacLean’s legal spouse, to whom he was, at the date of making the will, not married but was clearly contemplating marrying.

In the result, the will survived the marriage, and Mr. MacLean’s estate will be distributed according to the will.