Family and Spousal Interests Flashcards
Land Spouse Protection Act
Trigger = registration by non-owning spouse
Spouse = in 2011 amended to refer to family law act - which defined from march 18 2013 as “married or has lived together for continuous period of at least two years”
s1 - applies to homestead that has been occupied within the period of 1 year immediately preceding the application
s2 must be an application of non owning spouse to register an entry
s3 any inter vivos disposition is void without written consent of non owning spouse
(consent may be dispensed by order of court under s8)
s4(2)Despite any testamentary disposition - a life estate is given to the non owning spouse on the death of the owning spouse
The Act does not apply if the spouses have separated or if the homestead is dealt with by an agreement or order under the Family Law Act (s6).
Family Law Act has precedence over this act.
Wills Estates and Succession Act
Trigger = death of spouse (as defined)
Spouse =
(s2(1)(a))married in formal marriage ,
(s2(1)(b)) marriage like relationship - lived together in marriage like relationship, including btwn same gender, for at least two years
s2(2)(a) and (b) - cessation of marriage like relationship
s2(3) death of one of them is relevant time for determination of whether they are married/marraige like
WES Act what happens if dies without leaving a will?
If there is no surviving descendant the intestate estate must be distributed to the spouse s20 - (descendent means all lineal descendants through all generations (s2) )
If there is a spouse and surviving descendant the spouse must receive from the estate:
- The household furnishings (s21(2)(a)) meaning personal property usually associated with the enjoyment of the spouses of the spousal home (s21(1))
- A preferential share of the intestate estate (s21(2)(b))
The preferential share is determined according to s21(3) and (4):
If all descendants are descendants of both the intestate and their spouse, “the preferential share of the spouse is $300,000, or a greater amount if prescribed” (s21(3))
If not, the preferential share of the spouse is $150,000, or a greater amount if prescribed (s21(4))
If the estate includes a spousal home defined in s2 as the home in which the deceased person and his or her spouse were ordinarily resident owned or jointly owned by the desceased person and not leased to another person the surviving spouse is entitled to acquire the spousal house to satisfy in whole or in part the surviving spouses interest in the estate (s26(2)) If the value of the spousal home exceeds the spousal entitlement under the estate the act provides a process for the spouse to pay the balance.
There are provisions enabling court to exercise a discretion under specified options and circumstances that would allow a spouse to continue to reside in the spousal home notwithstanding the above provisions (s33)
*Under the estate administration act, the spouse would get a life estate in the house but that was changed to a preferential share here
WES Act - what if deceased has left a will but fails to make adequate provisions for proper maintenance and support of Spouse/children?
The court may: “order that the provision that it thinks is adequate, just and equitable in the circumstances be made out of the willmakers estate for the spouse or children” (s60)
Refer to relevant case law
*Created the wills variation part for widows after the war wouldn’t need to be paid welfare.
Family Law Act
Trigger = breakdown of marriage (separation upon which each spouse has a right to an undivided half interest in all family property as a TIC - s81)
Assented to in nov 2011, came into effect march 18 2013.
Spouse (s2 and s3) as a person (a) married to another person (b)who has lived with another person in a marriage like relationship for a continuous period of at least 2 years. For purposes in the act outside of Part 5(property) and Part6(pensions), spouse will include a person who together have a child
Replaces the Family Relations Act 1996
The act applies to both marriage and marriage like relationships
applies only to property acquired by spouse after the commencement of the relationship (after-acquired property). Section 85 provides for other exclusions from family property (eg gifts or inheritances to a spouse)
Note: increase in valuation is included in after-acquired.
each spouse has a right to an undivided half interest in all family property as a tenant in common (s81)
each spouse is equally responsible for family debt (s81) - this didnt exist under family relations act.
family residence (ordinary residence of the spouses) is subject to order of the court granting exclusive occupation to a particular spouse (s90)
The relationship between spouses begins on the earlier of (a) the date on which they began to live together in a marriage like relationship or (b) the date of their marriage
Meaning of “children” under Wills Variation?
The meaning of child includes adopted children but NOT step children, although it has been recommended by reform.
Walsh v Bona, 2002 SCC
Upheld the exclusion of unmarried couples from the statutory matrimonial property regime upon breakdown of the relationship
Legislature has now decided that property sharing does apply to marriage-like relationships.BUT under the family law act it applies only to after acquired property. Before, the act applied to all property even acquired before marriage.
Howard v Howard Estate (1997 BCCA)
Example of a will variation being rejected
Econ independent spouses marry late in life with prenup. Wife applies for variation because testator leaves her nothing. did not become econ unit and enter to a relationship of mutual benefit and contribution that usually comes with marriage. Signed the agreement and made their wills so cant expect this upon death .
Cannot contract out from wills variation procedures. BUT If there is a contract that has been entered into between spouses, it can be given strong weight in the process deciding whether adequate provisions have been made (ex howard case)
Tataryn v Tataryn Estate (1994 SCC)
Issue: What is adequate provision, meaning of “adequate, just and equitable”
Decision: Consider legal obligations during lifetime and then moral obligations. More than just need.
Size of estate increases moral duty
Walker v. McDermott
(considered in tataryn) may be seen as recognizing that the Act’s ambit extended beyond need and maintenance. As Amighetti, supra, puts it,, “the award in Walker v. McDermott can be supported only on the basis that the court interpreted the Act as a vehicle for redistribution of the capital of the estate”…. It may be noted that the need-maintenance rationale would not have permitted the court to recognize the claim of an independent adult child, as was done in Walker v. McDermott. (1930, SCC) → ie independent adult children are included.
Cases Demonstrating Activism in Wills Variation
Ex : Pickets and something case..
court went too far in howell opinion. Marriage-like relation with “friend” for 21 yrs. Courts all increased what she got significantly.
The court emphasized the size of the estate. Court notes that there was no legal obligations to the sons, who were well off
The court ignored the tataryn case which said the autonomy had to be given respect. Merely size alone cannot be seen as “wow its party time, judicial party time”.
Ex. Hall v Hall
Disowned son. The Court of Appeal found that the deceased had no legal or moral obligation to give her adult son a share, let alone an equal share, of her estate. Small estate.
Indications of Marriage- Like Relationships
Austin Case :What we can take from there is that financing and financial commitment is important but is only a factor
Desjorne ?: court looks at the intent of the parties - subjective or conscious intentions may be overtaken by conduct such that whilst a person living with another person might not say he or she is living in a marriage-like relationship, the reality is that the relationship has become such. Court also looks at absences in the matrimonial home. Some absences dont count as ceasing cohabitation. Need to look holistically- can focus on intent of parties but intent can be subjective or objective, must be holistic.
Another case:: Sharing sexual relationships, social companion, economic, societal perception, children together, sleeping arrangements (all considered - but not determinative)
How to avoid Wills Variation?
Dispose of property inter vivos.
There have been a few cases where the courts looked at a related area and applied or contemplated applying the fraudulent conveyances act, which is an enactment in relation to situations of bankruptcy where a person knows they are going bankrupt and doesnt have enough money for all creditors, then just gives all money to one creditor or whatever. The act allows clawback of fraudulent payments.
THe act reads if the payments were made to defraud “creditors……. And others” and so does “and others” cover spouse/child in these types of situations? Has been a case where it was applied, has been a contemplation (which would have been applied but there had been no intend to fraud).
Can you use this? The wills variation act doesnt have provisions that say you cant dispose inter vivos….
If you can use it, should it be limited to legal obligation or should it include moral? Creditors includes only legal obligation, so are you going to go the extra step further?
