Vancouver Estate Litigation: Ex pursues former common law spouse in the afterlife!

Estate litigation is a complex and emotional field of law. It involves various close relationships including a deceased will-maker’s parents, children, spouse(s), and siblings, among others.

Issues come to the forefront when a relationship is not so perfectly defined.

In Stacey Estate (Re), 2021 BCSC 397, for example, the deceased passed away in 2016 due to an unfortunate and fatal car accident. He was only 28 years-old. The deceased commenced a common law relationship with his partner when they began living together in 2010. They had one (1) child together. In August 2014, the two broke up and separated. They lived apart, in different residences, and different cities.

Also in January 2014, however - only eight (8) months before the break-up - the Deceased made a Will naming his ex-common law partner as the sole beneficiary. He failed to create a Will thereafter and passed suddenly.

After his passing, the ex-partner brought forward a Court Application stating she ought to be entitled to his estate, and the funds/property therein, as she was the sole beneficiary in the deceased’s last and only Will. The deceased’s mother disagreed defending his estate and stating that the ex’s rights were nullified by the August 2014 break-up.

Who was right?

This was the central question considered by the Court. If the ex was, she would be the sole beneficiary. If the deceased’s mother prevailed, the ex would be dismissed just as she was by the deceased. Ultimately the Court agreed with the deceased’s mother and dismissed the ex’ case.

If you would like to find out more about your rights in real life instances like the above, please call us for a free consultation.

In making its decision, Madam Justice Church canvassed the law on termination of marriage-like relationships as follows:

[20]      Whether a relationship is “marriage-like” or whether a spouse has terminated a marriage-like relationship are questions of mixed fact and law that require a “broad” or “holistic” approach:  Robledano v. Queano, 2019 BCCA 150 at para. 59, leave to appeal ref’d [2019] S.C.C.A. No. 265.

[21]      The question of whether a person has “terminated the relationship” requires a judge to consider the expressed and implicit intentions of each spouse, as well as the objective evidence concerning the subsistence of the relationship: Robledano at para. 55. “The determination is a ‘judgment call’ for the trial judge – the application of a broad legal standard to the factual circumstances of an individual case”: Robledano at para. 55.

[22]      Ms. Cross relies on Knelsen Estate (Re), 2020 BCSC 134 [Knelsen].  In that case, the court heard two competing petitions with respect to the intestacy of the deceased.  The petitioner sought a declaration that she was the surviving spouse of the deceased, while the deceased’s mother sought a declaration that the deceased was no longer in a spousal relationship, pursuant to s. 2 of WESA. 

[23]      The deceased and the petitioner in that case had been in a marriage-like relationship for approximately 12 years and had two young children together.  Their relationship had been somewhat turbulent and punctuated by periods of separation followed by reconciliations.  Approximately five years prior to the deceased’s death, the parties separated for nine months before once again reconciling.  They continued to live together in a marriage-like relationship but their relationship remained troubled.  Approximately three weeks prior to the deceased’s death, the petitioner separated from the deceased and began a relationship with another man.   Although the deceased consulted a family lawyer shortly after this separation, and changed the beneficiary on his life insurance policy, he also recorded entries in a notebook, which documented his struggle over whether to finally end his relationship with the petitioner.  The deceased purchased a ring for the petitioner and gave her a card professing his love for her.  There was evidence that the petitioner had told co-workers and the man with whom she began a relationship that she wished to reconcile with the deceased and work on their relationship. 

[24]      The court in Knelsen found that the parties’ separation for less than three weeks prior to the deceased’s death was insufficient time to assess the permanency of the breakdown of the relationship, particularly in light of the length of the parties’ relationship, their history of prior separations and reconciliations and the evidence that both the petitioner and the deceased continued to struggle with their feelings towards each other during the short period of separation immediately prior to the deceased’s death.  The court found that the evidentiary record was insufficient to clearly demonstrate the intention of either party to finally terminate the relationship. 

[25]      The facts in Knelsen are distinguishable from those in this case.  In Knelsen, the parties’ marriage-like relationship was relatively long and the period of separation was only three weeks.  There had been previous separations and reconciliations during the 12-year relationship, including one period of separation that lasted nine months.  There was also evidence that both parties wished to reconcile, leading to considerable uncertainty as to whether either of the parties had a settled intention to finally terminate the relationship.

[26]      In the case at bar, the parties lived together for approximately three and a half years and had been separated for 19 months when Mr. Stacey died.  There is no evidence of any prior periods of separation or reconciliation.