BC Family Law Estate Dispute Lawyers handle disputes related to family law and estate litigation claims. Family law actions can continue after separation both for support and property division under certain circumstances but there must be a separation to do so.
Hiring BC Family Law Estate Dispute lawyers who understand the interplay between WESA and the Family Relations Act help surviving spouses and children avoid disaster. MacLean Law’s BC Family Law Estate Dispute lawyers have been named top Vancouver Family Law Firm 4 of the past 5 years and scored 95/100 in 2018 in TOP CHOICE research. In today’s blog Gurdeep Randhawa and Lorne MacLean, QC warn of the perils related to a spouse’s rights in a shaky relationship where no separation has occurred.
BC Family Law Estate Dispute – EMERGENCY ALERT POINT
If your relationship is shaky and a spouse is in ill health you may wish to consider separating to preserve your family law rights. We recommend you meet with us immediately under these circumstances, as WESA claims are potentially far less generous. Certain clawback provisions exist under our Family Law Act related to multimillion-dollar estate freeze trusts that don’t exist under WESA. Contact us now.
FLA and WESA PREVENT DUPLICATE ACTIONS ON DEATH OF A “SPOUSE” Call 1 877 602 9900
In a recent B.C. Court of Appeal decision in Gibbons v. Livingston, 2018 BCCA 443 the Court confirmed what the legislators intended that the word “separation” in the Family Law Act does not include death. This is no surprise to our skilled BC Family Law Estate Dispute lawyers. Contact founder Lorne N Maclean, QC at Tel 604 697 2800.
BC Family Law Estate Dispute Takeaway – Separate Or Lose Family Law Rights Call 1 877 602 9900
Essentially, what this means is that under the current B.C. regime under the Family Law Act, upon the death of a spouse, if a living spouse has not separated is left out of a will, the living spouse is not permitted to bring a division of family property claim under the FLA. The living spouse can only pursue a claim to vary an unfair Will under section 60 of the Wills, Estates and Succession Act for variation of the Will and can seek provisions for her proper maintenance and support. If the Will contains little property as a result of tax planning by the wealthy deceased spouse the surviving spouse could get nothing.
In the latest case from our Appeal court, Mr. Livingston executed his last will and testament on December 1, 2004. He was single at the time and bequeathed his estate to his adult son, Graeme Livingston. Four years later, on February 8, 2008, Mr. Livingston and Ms. Gibbons commenced a marriage-like relationship. Their relationship continued until his unexpected death on February 26, 2016. Mr. Livingston was 64 when he died; Ms. Gibbons was in her mid fifties.
Mr. Livingston made no changes to his will during his relationship with Ms. Gibbons. His principal asset was the home in which the couple lived. Mr. Livingston brought that asset into the marriage and it was registered in his name. Mr. Livingston also owned an RRSP and TFSA. During the relationship, the couple purchased a boat. All of these assets were, at least in part, family property under the FLA.
Upon Mr. Livingston’s death, Ms. Gibbons lost her interest in the family property. As the sole beneficiary of Mr. Livingston’s will, the house devolved to Graeme Livingston. Graeme was also the direct beneficiary of Mr. Livingston’s RRSP and TFSA, which he received outside of the will. Ms. Gibbons, on the other hand, received nothing under Mr. Livingston’s Will but received $350,000 from Mr. Livingston’s life insurance policy and $3,000 per month from his employment pension outside the will.
As Mr. Livingston and Ms. Gibbons were not separated at the time of his death, Ms. Gibbons had no cause of action for a division of family property under the FLA. Her only recourse was a claim against Mr. Livingston’s estate pursuant to s. 60 of WESA.
The parties reached a settlement at the mediation and signed minutes of settlement, which noted that they were intended to be a resolution of all issues between the parties arising from the death of Calvin Livingston.
On August 15, 2017, Ms. Gibbons filed an amended notice of civil claim in this action in which she pleaded that the settlement agreement was unjust, unfair and inequitable, and in which she alleged a family property claim under the Family Law Act.
All three judges dismissed Ms. Gibbon’s appeal. Justice Willcock and Fenlon stated that the trial judge properly described the legislative scheme under the FLA and WESA and dismissed the FLA claim. The appropriate test for setting aside the settlement agreement as unconscionable is the test applied to separation agreements. Although Ms. Gibbons was in a vulnerable position when she entered the agreement, it was not unconscionable because she was represented by counsel, there was no evidence of anyone taking advantage of her, and the settlement is not a significant deviation from her statutory entitlement.
Madame Justice Smith provided additional reasons for judgment. She stated that:
 Where a spouse dies after separation but before settlement of their rights and obligations under the FLA, the surviving spouse can commence an action against the estate of the deceased. The provision in the FLA permitting this became necessary when the Wills Variation Act, R.S.B.C. 1996, c. 490 [WVA], was repealed. Although both the WVA and the WESA (which replaced it) provide a mechanism for a spouse to apply to vary the distribution of the estate provided for in the deceased spouse’s will, if dissatisfied with the provisions of the will (in s. 2 and s. 60, respectively), the definition of “spouse” under s. 1 of the WVA does not preclude separated spouses, whereas the definition of “spouse” under s. 2 of the WESA does. Under the WESA, then, separated spouses have no variation rights because they no longer qualify as a “spouse”.
 In the circumstances, I am of the view that the judge did not err in dismissing the appellant’s claim. The mediation agreement was meant to be a final determination of the appellant’s rights under the WESA and she did not have any additional claims under the FLA. While she was in a vulnerable position when she entered into the mediation agreement, this was insufficient to justify overturning the agreement because she was represented by counsel, there was no evidence of anyone taking advantage of her, and the settlement is not a significant deviation from her statutory entitlement. In other words, the circumstances surrounding the mediation and the settlement that came from it do not indicate any concerns with its procedural or substantive integrity in accordance with the WESA, the relevant legislative scheme.
 Allowing a division of family property claim after the death of a spouse gives the surviving spouse an opportunity to claim their share of the family property before calculating the value of the estate. If B.C. had a comparable provision in the FLA, Ms. Gibbons would have had the option of pursuing a claim for half the net family property upon Mr. Livingston’s death. That option might have made a wills variation claim under WESA unnecessary. Absent a legislative change, the rights of a surviving spouse in B.C. remain subject to the Tataryn test as it has been applied in this jurisdiction.
Our unfair wills variation and BC Family Law Estate Dispute lawyers are ready to assist you We recommend you do not procrastinate if your relationship is troubled and there is any risk that your spouse may pass away.