When are Couples Considered “Spouses”?

In estate litigation, the Court is often asked to determine whether or not a plaintiff was the “spouse” of the deceased.  We often refer to this as the “threshold question”, because being recognized as a “spouse” typically allows the plaintiff a greater claim on the estate.  While the status of a legally married spouse is usually easier to determine, WESA and other estate related law includes in the definition of “spouse” someone who has lived with the deceased in a “marriage-like relationship” for at least two years.

“Marriage-like relationships” come in many different forms.  Our Courts are clear that there is no set one set of criteria to be met, but rather, many possible indicators.  The bottom line is that each couple’s spousal status must be reviewed in the context of their own unique facts.

In a recent decision, the British Columbia Supreme Court considered, first, whether the plaintiff, Ms. McFarlane, was the “spouse” of the deceased, Mr. Goodburn, and second, if so, whether Mr. Goodburn’s will ought to be varied.

Ms. McFarlane and Mr. Goodburn had been family friends for many years. Following the deaths of their respective spouses, Mr. Goodburn moved into Ms. McFarlane’s home and they began an intimate relationship. During the course of their eleven-year relationship, the couple socialized together, vacationed together and, according to Ms. McFarlane, regarded themselves as husband and wife despite maintaining separate finances. Mr. Goodburn suffered from various health conditions and relied on Ms. McFarlane for care and assistance until his death. In his will, he left nothing to Ms. McFarlane. Ms. McFarlane argued that the will ought to be varied in her favour as it failed to make adequate provision for her maintenance.

 To determine whether the will ought to be varied, the Court first had to consider whether she was Mr. Goodburn’s spouse. The Court answered this question in the affirmative based on the following objective and subjective factors:

  • The couple shared a home and a bed;
  • Ms. McFarlane provided care and support to Mr. Goodburn to the degree and in the manner of someone who was more than simply a friend;
  • In their social interactions with friends and family, the couple would have appeared to function as a unit; and
  • Each was likely committed to life-long financial and moral support of the other.

 The Court further explained that for a relationship to be “conjugal”, couples are not required to fit precisely the traditional marital model.  The Court therefore found that Ms. McFarlane was in fact a spouse, and ordered that the will be varied to provide for her.

 Thank you to Alexandra Andrisoi, articled student, for her assistance in preparing this post.


Are there new Amendments coming to the Adult Guardianship Act?

In a previous post, we discussed amendments to the Patients Property Act that will come into effect on December 1 2014.  There are  also amendments to the Adult Guardianship Act that will come into effect on that date.

The amendments will:

  • affect the manner in which the Public Guardian and Trustee is appointed to manage the financial affairs of people determined to be incapable (called “adults” under the legislation”); and
  • increase the procedural protections of adults.  There are various mechanisms by which an adult can challenge a certification that he or she is incapable.

If you are confronted with these issues, the following resources may be helpful:


What does it mean to be a fiduciary?

A family member or friend has died and you are named as the executor and trustee under their will. You are flattered and honored, but you’ve never acted in this capacity before and you’re unsure of what exactly it means. One key thing you should be aware of is that, if you take the role, the law considers you to be a fiduciary –meaning your conduct will be held to high standards developed by the courts over many centuries.

The hallmarks of a fiduciary relationship, as summarized by the Supreme Court of Canada, are as follows:

  1. The fiduciary has scope for the exercise of some discretion or power.
  2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.
  3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

Commonly recognized categories of fiduciary relationships include trustee/beneficiary, director/ corporation, lawyer/client, doctor/patient, and partners within a business partnership.

As an executor and trustee, your fiduciary obligations include the following:

  • Take due care. In dealing with the estate, you must exercise an appropriate level of care, skill and diligence. You have to care for the trust property in the manner that a reasonably prudent person would care for the property of others for whom they felt a moral obligation to provide.
  • Act in good faith. Your decisions must be based on proper considerations, and the interests of the beneficiaries. You can’t use your position to benefit yourself. You must scrupulously avoid entering into deals or arrangements that benefit you in some way or that would otherwise cause your personal interests to conflict with your position as trustee.
  • Remain impartial. You can’t favour one beneficiary or group of beneficiaries over another, regardless of your personal feelings and alliances. If the interests of two groups of beneficiaries are in conflict – for example the deceased’s spouse is to receive trust income for life and his children receive the capital on her death – you must take particular care to balance their interests in an even-handed way.

A breach of a fiduciary obligation can have serious legal, financial and reputational implications. If you are finding it difficult to carry out these duties, or are not sure how they apply to you, ask for help.