Estate Litigation and Second Marriages
Courts have established discretionary guidelines for determining if a will does or does not make adequate provision for the proper maintenance and support of the deceased’s spouse or children.
To test whether there is “adequate provision for proper maintenance and support,” the court will review if the testator was “acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards”: Schipper v. Schipper Estate, 2010 BCSC 1067.
While this seems straightforward to the seasoned estate litigation lawyer, what happens in cases of second marriages? Our Vancouver wills variation lawyers explain.
Legal Precedent in Second Marriages Wills Variation
In Unger v. Unger, 2017 BCSC 1946, the deceased, Jacob Unger, had died at the age of 82, providing within his will, that after $20,000 bequests to each of his two daughters, the remainder of his estate was to be divided equally among his four adult children–two of which were his second wife’s children from her first marriage.
Though Unger had been married twice in his lifetime, his wife at the time of his passing was left nothing in the will. Jacob made note within the will that during his lifetime, he had transferred 50% of their matrimonial home to his second wife. However, his wife filed for wills variation claiming that Jacob had not made equitable provisions for her. Jacob’s biological children opposed the variation.
It is also important to note that before his passing, the couple had separated, though reconciled to some extent before his death.
So What Did the Court Decide?
Because the home was no longer held by Mr. and Mrs. Unger at the time of his death, the home was sold and Mrs. Unger received 50% of the value as per the transfer in the title made while Jacob was living. The remainder of his assets were held in a joint account he shared with one of his daughters.
Though Mrs. Unger made no financial contribution to the marital home, the court concluded that the 50% share she received was presumed to be a gift under the common law. Nevertheless, Mrs. Unger did, in fact, have a strong claim for the division of property.
This is obviously a unique case, as many more elements of the Unger’s relationship came to fruition, including abuse. But what test can the courts utilize when determining the rights of a spouse in a second marriage in wills variation claims?
Second Spouse’s Legal Claim in Wills Variation
When determining if a spouse from a second marriage has a right to vary a will in British Columbia, courts will review the following elements of the marriage:
- The length of the marriage;
- When/how the deceased’s assets were acquired;
- The contributions made by the second spouse to the estate;
- How family assets would be divided upon marriage breakdown;
- Obligations to the children from the first marriage;
- Financial circumstances of the spouse;
- The size of the estate; and
- The value of assets passing to the spouse outside of the will via right of survivorship or by transfer of assets during the will-maker’s lifetime
There are issues that arise in wills variation claims involving second marriages and adult children. The Vancouver estate litigation lawyers of Klein Lawyers can help.
Vancouver Estate Litigation and Second Marriages: Klein Lawyers
When you have been married more than once, there are a lot of factors that come into play when it comes to proper estate planning. Unfortunately, be it intentional or not, sometimes an estate plan does not get updated following the second marriage, leaving one spouse missing out on the estate’s value.
As the spouse of the deceased, you likely have a claim to a portion of the estate, even if your spouse left you a gift before death. But when family tensions are high with the biological children, you will need a lawyer who can guide you through the process.
Contact Klein Lawyers at (604) 874-7171 today for a free, confidential case evaluation. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.