COURT EXPANDS RIGHTS OF COMMON LAW SPOUSES
NOTE: The law in British Columbia has now been changed
so that the rights of a common law spouse are similar to the rights of a
legally married spouse to vary the will of a deceased spouse. The
following article is of historical interest.
In a recent case, the Supreme Court of British Columbia recognized the
right of a common law spouse to apply to the court to vary the will of a deceased spouse
thus extending the rights of common law spouses in the Province. The recent decision
of the Court ensures that common law spouses, and partners in a marriage-like relationship
will have the same benefit and protection of the law as legally married individuals.
The Wills Variation Act says that if a person (called the testator) dies
leaving a will that does not, in the court's opinion, make adequate provision for the
proper maintenance and support of the testator's wife, husband or children, the court may,
in its discretion, in an action by or on behalf of the wife, husband or children, order
that the provision that it thinks adequate, just and equitable in the circumstances be
made out of the testator's estate for the wife, husband or children. This allows a
surviving husband or wife, and the children, to challenge a will. If the challenge is
upheld by the court, then the will effectively is re-written and the estate distributed
according to the terms set out by the court.
The Canadian Charter of Rights and Freedoms provides to all Canadians
certain basic rights and freedoms. One of these is the right to the equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination
based on race, national or ethnic origin, colour, religion, sex, age, or mental or
physical disability. In an earlier case, the Supreme Court of Canada had already decided
that a denial of benefits under an insurance policy based upon the person being a common
law spouse rather than legally married was discrimination under the Charter.
At present the Province of British Columbia is considering a change to the
law so that a common law spouse has the same rights as a legally married individual under
the Wills Variation Act. But this has not yet been proclaimed as the law. Under the Wills
Variation Act, a common law spouse does not have the right to challenge the provisions of
a will of a deceased partner. A husband or wife, and the children of a testator can
challenge a will that does not make adequate provision for the maintenance or support of
the person making the challenge. A common law spouse or the surviving partner of a
marriage like relationship does not have any such right.
The court in the recent case was looking at a longer term relationship
during which the common law spouses had shared their lives, shared expenses, and held
themselves out as husband and wife. Eventually they were engaged with plans to marry. The
husband died before they could marry. Under the will, a relatively small amount was left
to the common law spouse who was then 65. As the law was at the time, she could not
challenge the will on the basis that it did not make adequate provision for her
In the opinion of the court, she was not treated equally under the law. If
they had been married, she could have challenged the will. The total estate was almost
$500,000.00; she received $10,000.00 plus the right to live in the apartment for 3 years
after the death of her partner of 13 years. If she was a widow, no doubt under the law she
would be entitled to a much greater share of the estate. The only thing preventing her
from challenging the will was that she and her partner were in a common law or
marriage-like relationship and not legally married.
The court ruled that the provisions of the Wills Variation Act did not
treat all individuals equally and in particular, breached the right to equal protection
under the law as provided by the Charter of Rights. To remedy the situation, the court
declared the particular provision of the Wills Variation Act invalid. The declaration was
suspended for one month to allow the government time to change the law. If it is not
changed, then the court ruling will take effect. Individuals living in a common law
relationship or a marriage-like relationship will finally be entitled to equal protection
of the law in this very significant area.
If you have any questions on the issues discussed above, or on
any legal issues in general, please contact Sucha S. Ollek at: firstname.lastname@example.org.